By John Marks
LAKE WYLIE –Summer boating season isn’t waiting until summer this year. But safety experts say they’re ready.
The unofficial launch to boating season generally comes with Memorial Day. But an almost nonexistent winter and warm temperatures earlier in 2012 already has traffic spiking on Lake Wylie.
“During this time of year we are seeing mostly fishermen with the weekend lake population beginning to grow, especially with the recent warm weather,” said Sgt. Brent Mabry with the York County Sheriff’s Office lake patrol.
Groups such as the Lake Wylie Marine Commission and law enforcement agencies along the lake gear up with boating season to help keep problems on the water from becoming collisions or even fatalities.
A general concern for the summer season is human-powered boats and motorized ones sharing space.
Joe Stowe, executive director of the Lake Wylie Marine Commission, already had a call from a group of scullers in a cove saying motor boats were coming too close. Needing the calm waters of early morning and sitting low to the water, scullers crews are vulnerable in low light conditions.
“They’re having problems with people seeing them on the lake,” Stowe said.
The commission also is looking into how kayakers and paddle boarders share the lake with fishing boats, ski boats and personal watercraft. Along with its law enforcement partners, the commission wants to stay “ahead of the accidents” that could prove dangerous.
“They’re out in the middle of the lake with no good way to identify them, and you have speed boats coming at 30 and 40 miles an hour, and the two meet,” Stowe said.
Commissioner Terry Everhart also is a lake patrol officer for Charlotte-Mecklenburg Police Department. Everhart isn’t interested in writing more tickets or even introducing more laws, but instead wants to see if the commission can find simpler approaches to sharing a public waterway.
“What I want is to make it safe for everybody,” he said. “I want to encourage everybody to come out and have a safe time.”
Of particular interest is the area on the northern reach of Lake Wylie between the U.S. National Whitewater Center and Tailrace Marina.
That area is used by paddlers who rent kayaks, but there also are blind turns and substantial motor boat traffic. The commission plans to contact rental spots there to see what instruction is being given to paddlers. Everhart hopes through educating the different types of boat users on the lake, his group can avoid a push toward sectioning off areas for specific uses through no wake zones or other methods.
“The lake’s still big enough and people are still considerate enough to where you can work something out,” he said.
Safety in officers
One issue that shouldn’t be of concern is the presence of law enforcement. Officers generally spend more time in the water during peak use seasons – warm weekends and all summer – but have at times had to stretch patrol hours in the past several years due to fewer available man hours.
Fishing tournaments are way up, and casual boating is revving toward the summer.
But so is law enforcement.
The agencies representing both states and all through counties surrounding Wylie have at least as many boats and officers as last year. In North Carolina, there’s one more shared position for use on Wylie and Mountain Island Lake.
“Right now there are two of us on the lake full-time, and we will be supplemented this summer with four school resource officers,” said Mabry, whose jurisdiction includes 44 percent of the bi-state lake.
Some law enforcement personnel recently attended an international boating safety conference, where they learned new techniques.
Other methods – always wearing life jackets, a sober driver – are older than the lake itself.
Everhart does hope to curb a trend toward wakesurfing, where riders are in close proximity to the props.
He also imagines that there will be more boaters heading to sandbars or other spots to anchor for the day, a trend common to high gas price years.
Yet he doesn’t see fewer boats in the lake’s forecast.
“There’s been a lot of folks out using the lake,” Everhart said.
Stowe hopes the issues he’s heard about can be resolved, and those plans will help boaters throughout the lake.
“It’s important that people know we’re having problems, and we are trying to deal with those problems,” he said.
As with neighboring county and state agencies, Mabry said the main goal isn’t writing tickets or dampening a day on the water.
“Our main objective this summer, as it has been in past years, is for everyone to enjoy the lake and return home safely at the end of the day,” he said.
The personal injury and criminal attorneys of Reeves, Aiken & Hightower LLP have over 70 years of trial experience. Whether you have been injured in a boating accident or charged with boating under the influence (BUI), we can help. For more information about our lawyers and firm, please visit www.rjrlaw.com. For a private, confidential consultation about your case, call us at 877-374-5999. Be Safe. Get Home.
May 1, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
The article below from last year reminds us again now that summer is almost here how important it is to always be safe when out on the water. Whether in a speed boat, fishing boat, pontoon boat, or personal watercraft (PWC), please be aware of the safety rules and watch out for other boaters and swimmers in the water. While there is nothing better than skiing or fishing on the lake, a moments inattention or carelessness can change your life and someone else’s life forever. And just like when driving a car on the road, designate a driver for the boat who will not be drinking. Unlike cars which have airbags and safety belts, boats do not. Even a minor impact can cause serious, life-threathening injuries. Finally, when pulling a skier behind your boat, please have separate people driving and watching for other boaters while a different person makes sure the skier is safe. If everyone follows these basic safety rules, we can all have a great boating season this 2012 summer.
The injury and criminal attorneys of Reeves, Aiken & Hightower LLP hope all families enjoy the lake this summer and go back to school with great stories and memories. We want everyone to be safe and get back home. If you or someone you love is injured or charged with boating under the influence (BUI), we are here to help. For more information about our lawyers, please visit www.rjrlaw.com. Compare our attorneys’ credentials to any other law firm. Then call us at 877-374-5999 for a private, confidential consultation.
Driver in deadly boat accident volunteers time in water safety class
Thursday afternoon, Randy Shaw helped with a water safety class held at the Canal Street Recreation Center in Myrtle Beach. He knows first hand how important this class is.
Last August, he was driving a boat pulling two teenagers behind it on an inner tube. When he drove under a bridge, “The inner tube was supposed to track right behind the boat, and I don’t know why, but it drifted from behind the boat. It made contact with a piling,” said Shaw.
Allison Howell died, and another teenager was seriously injured. Shaw pled guilty to negligent boat operation. He paid a fine and was ordered to do community service.
“Since I couldn’t keep them safe that day because of a mistake that I made, then I’m going to try to keep other people safe in honor of Allison’s memory.” He continued, “You might think, awww I’ve done this 100 times, I’ve done it a thousand times, it doesn’t matter. It doesn’t take but once to take somebody’s life or injure somebody or permanently disfigure them.”
Shaw, who says he’s driven boats since he was a teenager, learned later he wasn’t supposed to pull an inner tube under a bridge. Since the accident he’s taken a boating safety class and has only been out on the water once. “It’s hard, it’s hard to get back. As much as I love the water, it’s hard to be able to to get back out there.”
Thursday, he joined Department of Natural Resources officer Sgt. Kim Leverich as she shared with a group of kids the importance of wearing a life jacket. The advice isn’t just for them.
“We’re hoping by getting it across to these kids that maybe they can advise their parents, ‘Dad, that’s not the right size life jacket or Dad, I’m not supposed to be sitting on the bow like that,'” said Leverich.
According recent statistics from the U.S. Coast Guard, three-quarters of all fatal boating accident victims drowned and of those, 84% percent were not wearing life jackets.
“There’s actually certain life jackets that are belt life jackets that are approved by the Coast Guard that you can wear, so you can still have that bikini on and have something safe. There’s also inflatables that’s a U shape around your neck, and once you hit the water, it will inflate automatically,” said Sgt. Leverich.
Another big danger on the water is boating under the influence or BUI which is a criminal offense. The Coast Guard says it’s the leading contributing factor in fatal boating accidents. That, coupled with boater fatigue, which Leverich says happens after about four hours on the water, leads to slower reaction time.
She also sees another problem with boaters. “They’re not being courteous to other boaters. They’re not slowing down for the no wakes. They’re not slowing down within 50 feet of a swimmer or a dock or an anchored boat.”
This Memorial Day weekend, DNR officers will perform free safety checks.
Apr 30, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
This serious accident case involving a large commercial dump truck illustrates how small facts can lead to big verdicts. It also demonstrates how these serious injury cases are aggressively defended. Here, the dispute involves whether the jury should be permitted to consider punitive damages because the SCDOT driver was allegedly speeding at the time of the crash. A statutory violation (speeding) is “negligence per se” which is at least some evidence of “recklessness.” That fact alone, if proven, is enough to submit punitive damages to the jury.
The next important issue discussed in this case is the effect intervening negligence by a third party can have on the outcome. Here, the defense wanted to plant the idea of malpractice allegedly committed by a treating physician, even though there was no evidence of same. The Court rightly declined to so instruct the jury. Again, the mere attempt shows the lengths to which insurance carriers and their lawyers will go to win or reduce a verdict.
Complex litigation in serious injury cases requires years of experience. The trial attorneys of Reeves, Aiken & Hightower LLP have over 70 years experience trying cases in court. Their unique backgrounds include former insurance defense experience and a former Intensive Care Unit Registered Nurse (RN). Together, they form a team ready to fight tirelessly for you and your family. For more information about our firm, please visit www.rjrlaw.com. Compare our attorneys’ credentials against any other law firm. Then call us for a private consultation at 877-374-5999.
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Marilee B. Fairchild and Larry J. Fairchild, Plaintiffs,
Of whom Marilee B. Fairchild is Respondent,
v.
South Carolina Department of Transportation, William Leslie Palmer and Palmer Construction Co., Inc., Defendants,
Of whom William Leslie Palmer and Palmer Construction Co., Inc., are Petitioners.
ON WRIT OF CERTIORARI TO THE COURT OF APPEALS
Appeal From Colleton County
Perry M. Buckner, Circuit Court Judge
Opinion No. 27112
Heard November 15, 2011 – Filed April 11, 2012
AFFIRMED
Kirby D. Shealy, III and Bradley L. Lanford, both of Baker, Ravenel & Bender, of Columbia, for Petitioners.
Bert G. Utsey, III, of Peters, Murdaugh, Parker, Eltzroth & Detrick, of Walterboro; and George D. Jebaily and Suzanne H. Jebaily, both of Jebaily Law Firm, of Florence, for Respondent.
JUSTICE BEATTY: This Court granted a petition for a writ of certiorari to review the decision in Fairchild v. South Carolina Department of Transportation, 385 S.C. 344, 683 S.E.2d 818 (Ct. App. 2009). The Court of Appeals affirmed in part, reversed in part, and remanded for a new trial a negligence action arising from a motor vehicle accident. In relevant part, the Court of Appeals determined (1) Marilee Fairchild’s claim for punitive damages should have been submitted to the jury, (2) the trial court should have charged the jury on the intervening negligence of a treating physician, and (3) the trial court did not abuse its discretion in denying William Leslie Palmer’s motion under Rule 35, SCRCP for an independent medical examination (IME) to be performed by Dr. James Ballenger. We affirm.
I. FACTS
This action arises out of a motor vehicle accident that occurred on March 1, 2001 while several vehicles were traveling south on Interstate 95 in South Carolina.
Just before the accident, James Rabb, an employee with the South Carolina Department of Transportation (SCDOT), was driving a dump truck with an attached trailer transporting a backhoe. Rabb was traveling in the left lane of the southbound traffic (closest to the median) when he pulled in to a paved “cross-over” in the median so he could turn around and enter the northbound lanes of I-95. While Rabb was stopped waiting for the northbound traffic to clear, the back of his trailer allegedly protruded into the left traffic lane on the southbound side.
Several cars traveling south in the left lane directly behind Rabb saw Rabb’s trailer and simultaneously switched to the right lane. When those cars moved over, Marilee Fairchild, who was behind them driving a minivan, saw Rabb’s trailer partially blocking the left lane where she was traveling. Fairchild “flashed” her brakes and then continued to brake while staying ahead of the vehicle behind her. Fairchild managed to avoid Rabb’s trailer, but she was struck by a truck traveling behind her that was driven by William Leslie Palmer.
Palmer, whose truck also had an attached trailer (which contained a motorcycle), hit his brakes and swerved to the right when he came upon Fairchild. However, Palmer struck Fairchild’s minivan, and the force of the impact with Palmer’s large vehicle caused Fairchild’s minivan to flip over and roll before landing in the median. Rabb’s truck was not hit in the accident.
On February 26, 2003, Fairchild[1] brought this negligence action against SCDOT, Palmer, and Palmer Construction Co., alleging she sustained physical injuries and property damage in the accident. She sought both actual and punitive damages. Fairchild thereafter entered into a covenant not to sue with SCDOT, and SCDOT was dismissed as a party.
At trial, the jury returned a verdict in favor of Fairchild for $720,000. Both parties appealed. The Court of Appeals affirmed in part, reversed in part, and remanded. We thereafter granted Palmer’s[2] petition for a writ of certiorari.
II. LAW/ANALYSIS
A. Punitive Damages
Palmer first argues the Court of Appeals erred in holding the trial court should have submitted Fairchild’s claim of punitive damages to the jury based on its determination that the evidence and its reasonable inferences created a factual question as to whether he had acted recklessly.
The trial court granted Palmer’s motion for a directed verdict on Fairchild’s claim for punitive damages on the basis there was noevidence of reckless conduct by Palmer. However, the trial court did conclude that two statutes governing traffic safety were implicated in this case and charged the jury on the same. The first, section 56-5-1520(A), provides general rules as to maximum and safe speeds and states when lower speeds may be required:
A person shall not drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing. Speed must be so controlled to avoid colliding with a person, vehicle, or other conveyance on or entering the highway in compliance with legal requirements and the duty of a person to use care. S.C. Code Ann. § 56-5-1520(A) (2006).
In addition, the trial court charged the jury on section 56-5-1930(a), which prohibits following too closely:
The driver of a motor vehicle shall not follow another vehicle more closely than is reasonable and prudent, having due regard for the speed of such vehicles and the traffic upon and the condition of the highway. Id. § 56-5-1930(a).
The Court of Appeals found the grant of a directed verdict on the claim for punitive damages was error as the evidence and its reasonable inferences created a factual question as to whether Palmer had acted recklessly. Fairchild, 385 S.C. at 353, 683 S.E.2d at 823. The court agreed with Fairchild that, based on Palmer’s conduct, which included driving a large commercial truck[3]into heavy traffic just before the accident without any reduction in his rate of speed, and his alleged statutory violations, the jury should have been permitted to consider whether Palmer acted recklessly. Id.
Citing long-standing South Carolina precedent, the Court of Appeals held the violation of a statute constitutes negligence per se, and negligence per se is some evidence of recklessness and willfulness that requires submission of the issue of punitive damages to the jury. Id. at 354, 683 S.E.2d at 823. The Court of Appeals cited this Court’s decision in Wise v. Broadway, 315 S.C. 273, 433 S.E.2d 857 (1993) as well as additional authorities to this effect:
Wise v. Broadway, 315 S.C. 273, 276, 433 S.E.2d 857, 859 (1993) (“The causative violation of a statute constitutes negligence per se and is evidence of recklessness and willfulness, requiring the submission of the issue of punitive damages to the jury.”); Rhodes v. Lawrence, 279 S.C. 96, 97-98, 302 S.E.2d 343, 344 (1983) (“In these circumstances, a jury question as to punitive damages was clearly presented given the well settled rule that a showing of statutory violation can be evidence of recklessness and willfulness.”); Austin v. Specialty Transp. Servs., Inc., 358 S.C. 298, 314, 594 S.E.2d 867, 875 (Ct. App. 2004) (“A factual question as to punitive damages is presented when there is evidence of a statutory violation.”).
Id. The Court of Appeals noted “[t]hese cases limit their holdings to creating a jury question only and not recklessness per se.” Id. The court referenced the express limitation pronounced by this Court in Wise:
Violation of a statute does not constitute recklessness, willfulness, and wantonness per se, but is some evidence that the defendant acted recklessly, willfully, and wantonly. It is always for the jury to determine whether a party has been reckless, willful, and wanton. However, it is not obligatory as a matter of law for the jury to make such a finding in every case of a statutory violation.
Id. at 354, 683 S.E.2d at 823-24 (quoting Wise, 315 S.C. at 276-77, 433 S.E.2d at 859 (internal citations omitted)).
The Court of Appeals concluded that there was evidence Palmer was negligent per se in causing the accident, which consisted of following another vehicle too closely and speeding; consequently, a jury could have found Palmer violated sections 56-5-1930(a) and 56-5-1520(A), and the finding of a statutory violation may be considered by the jury as evidence of recklessness. Id. at 357, 683 S.E.2d at 825. As a result, the court reversed the grant of a directed verdict on punitive damages and remanded for a new trial. Id.
On appeal to this Court, Palmer asserts this was error, and that “evidence of a statutory violation alone, without more, is generally insufficient to send the issue of punitive damages to the jury.” He contends the two statutes at issue codify the common law standards for safe speeds and following distances, and they do not establish bright-line standards; therefore, they should not form the basis for an award of punitive damages without other supporting evidence.
In reviewing a ruling on a motion for a directed verdict, this Court must view the evidence and all reasonable inferences from the evidence in the light most favorable to the party opposing the motion. Weir v. Citicorp Nat’l Servs., Inc., 312 S.C. 511, 435 S.E.2d 864 (1993). A case should be submitted to the jury when the evidence is susceptible of more than one reasonable inference. Unlimited Servs., Inc. v. Macklen Enters., Inc., 303 S.C. 384, 401 S.E.2d 153 (1991). It is not the duty of the trial court to weigh the testimony in ruling on a motion for a directed verdict. Young v. Bost, 241 S.C. 289, 128 S.E.2d 118 (1962).
Punitive damages are recoverable where there is evidence the defendant’s conduct was reckless, willful, or wanton. Cartee v. Lesley, 290 S.C. 333, 350 S.E.2d 388 (1986). Recklessness is the doing of a negligent act knowingly; it is a conscious failure to exercise due care, and the element distinguishing actionable negligence from a willful tort is inadvertence. Berberich v. Jack, 392 S.C. 278, 287, 709 S.E.2d 607, 612 (2011). The terms “willful” and “wanton” when pled in a negligence action are synonymous with “reckless” and import a greater degree of culpability than mere negligence. Id. at 288, 709 S.E.2d at 612. “Evidence that the defendant’s conduct breached this higher standard entitles the plaintiff to a charge on punitive damages.” Id. (quoting Marcum v. Bowden, 372 S.C. 452, 458 n.5, 643 S.E.2d 85, 88 n.5 (2007)); see also S.C. Code Ann. § 15-33-135 (2005) (“In any civil action where punitive damages are claimed, the plaintiff has the burden of proving such damages by clear and convincing evidence.”).
“Ordinarily, the test is whether the tort has been committed in such a manner or under circumstances that a person of ordinary reason or prudence would have been conscious of it as an invasion of the plaintiff’s rights.” Cartee, 290 S.C. at 337, 350 S.E.2d at 390. “The test may also be satisfied by evidence of the causative violation of an applicable statute.” Id. “However, before punitive damages may be submitted to the jury, there must be evidence the statutory violation proximately contributed to the injury.” Id. “Ordinarily, whether or not the statutory violation contributed as a proximate cause to the injury is a question for the jury.” Id.
“There must be some inference of a causal link between the statutory violation and the injury to warrant submitting the issue of punitive damages to the jury.” Id. at 337-38, 350 S.E.2d at 390. For example, in Cartee the Court noted that if, in a case by beneficiaries against trustees for mismanaging assets, the trustees had been guilty of driving without their driver’s licenses, they would have been guilty of violating a statute; however, that violation could have nothing to do with the injuries claimed by beneficiaries and would not justify a charge on punitive damages because “[s]ome inference of causation must be shown.” Id. at 338 n.3, 350 S.E.2d at 390 n.3; see also Austin v. Specialty Trans. Servs., Inc., 358 S.C. 298, 594 S.E.2d 867 (Ct. App. 2004) (stating the causative violation of a statute constitutes negligence per se and is evidence of recklessness and willfulness, requiring submission of the issue of punitive damages to the jury).
In Copeland v. Nabors, 285 S.C. 340, 329 S.E.2d 457 (Ct. App. 1985), the Court of Appeals found the record contained evidence from which the jury could have inferred that Nabors violated one or more statutes relating to maximum speed limits and to overtaking and passing vehicles proceeding in the same direction and that Nabors thereby engaged in conduct warranting an award of punitive damages. Likewise, in Field v. Gregory, 230 S.C. 39, 94 S.E.2d 15 (1956), this Court found evidence of the violation of at least three applicable traffic statutes, which resulted in a traffic collision, warranted the submission of punitive damages to the jury. We stated, “The violation of an applicable statute is negligence per se, and whether or not such breach contributed as a proximate cause to [the] plaintiff’s injury is ordinarily a question for the jury.” Id. at 44, 94 S.E.2d at 18 (citation omitted). We observed that “[c]ausative violation of an applicable statute constitutes actionable negligence and is evidence of recklessness, willfulness and wantonness.” Id. at 46, 94 S.E.2d at 19 (citing Morrow v. Evans, 223 S.C. 288, 295, 75 S.E.2d 598, 601 (1953)); accord Padgett v. Colonial Wholesale Dist. Co., 232 S.C. 593, 103 S.E.2d 265 (1958); Vernon v. Atlantic Coast Line R. Co., 221 S.C. 376, 70 S.E.2d 862 (1952); Ralls v. Saleeby, 178 S.C. 431, 182 S.E. 750 (1935); Lumpkin v. Mankin, 136 S.C. 506, 134 S.E. 503 (1926).
In Daniels v. Bernard, 270 S.C. 51, 240 S.E.2d 518 (1978), this Court held that testimony that a witness saw two vehicles traveling north on Highway 52, that Bernard’s vehicle was trailing the vehicle driven by Daniels and gaining on Daniels’s vehicle, and that the Bernard automobile rammed into the rear of Daniels’s vehicle was evidence from which the jury could have reasonably inferred that Bernard was following too closely and was failing to maintain a proper lookout. Id. at 55, 240 S.E.2d at 519-20. The Court noted following too closely was a violation of section 56-5-1930 and “the violation of a statute is negligence per se and is evidence of recklessness and willfulness, requiring the submission of the issue of punitive damages to the jury.” Id. at 55, 240 S.E.2d at 520 (citing Jarvis v. Green, 257 S.C. 558, 186 S.E.2d 765 (1972) and Still v. Blake, 255 S.C. 95, 177 S.E.2d 469 (1970)). The DanielsCourt concluded the trial court erred in holding there was no evidence of recklessness to sustain an award for punitive damages. Id. at 56, 240 S.E.2d at 520.
Similarly, in the current appeal, we find the trial court erred in granting a directed verdict on the issue of punitive damages. It is not the duty of a trial court to weigh the evidence. Viewing the evidence and its reasonable inferences in the light most favorable to Fairchild, as both the trial court and this Court are required to do, we hold there is evidence to create a jury question as to whether or not Palmer acted with recklessness, thus requiring submission of the issue of punitive damages to the jury.
Palmer was driving a commercial-sized truck, towing a 28-foot trailer, and hauling a motorcycle, and his combined weight exceeded eight and one-half tons. Palmer knew he was approaching an area of merging traffic and possible congestion on I-95 near several rest areas, and he acknowledged that it was an area “where a lot of accidents happen.” Palmer further described the traffic around his truck prior to the collision as “typical crazy interstate 95 traffic, you know, everybody running together.” He also was aware of the potential that traffic could slow down to a crawl due to a wreck or other conditions, and he knew of the need to maintain a safe stopping distance for such a large vehicle.
Palmer acknowledged that he maintained a “pretty steady speed” of 65 to 70 miles per hour to avoid “giving distance” that would let other vehicles cross into his lane ahead of him. He also stated he was “maybe a hundred feet or more” behind Fairchild when she first applied her brakes. Palmer maintained he did not even notice Fairchild until right before the impact.
We further agree with the Court of Appeals that there is evidence that Palmer might have violated section 56-5-1520(A) (circumstances requiring a reduction in speed) and section 56-5-1930(a) (following too closely), and there is an inference that the violations of these statutes were the proximate cause of the accident. Therefore, Fairchild’s claim for punitive damages should have been submitted to the jury.
Moreover, even where the trial court has submitted the issue of punitive damages to a jury, the defendant still has an opportunity to challenge the propriety of any resulting punitive damages award. The trial court has the authority to review the punitive damages award and if the court finds the award is inappropriate or excessive, it has the discretion to order a new trial or remittitur. See generally Mitchell v. Fortis Ins. Co., 385 S.C. 570, 686 S.E.2d 176 (2009) (stating a reviewing court should consider the following set of factors in conducting a post-judgment review of an award of punitive damages: (1) the degree of reprehensibility of the defendant’s conduct, (2) the disparity between the actual or potential harm suffered by the plaintiff and the amount of the punitive damages award, and (3) the difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in comparable cases).
B. Intervening Negligence of Third Party
Palmer next contends the Court of Appeals erred in determining the trial court should have charged the jury on the intervening negligence of a third party.
Fairchild submitted three proposed instructions (Plaintiff’s Requests to Charge #11, #12, & #13) regarding intervening negligence, which included several variations on the following principles:
The intervening negligence of a third party will not excuse the original wrongdoer if such intervention ought to have been foreseen in the exercise of due care.
It is the law in South Carolina that the negligence of a treating doctor is reasonably foreseeable. It is the general rule that if an injured person uses ordinary care in selecting a physician for treatment of his injury, the law regards the aggravation of the injury resulting from the negligent act of the doctor as part of the immediate and direct damages which naturally flow from the original injury.
The trial court declined to give the requested instructions on the basis there was no evidence of negligent treatment by an attending physician.
The Court of Appeals held this was error, noting that during the trial Palmer had stressed the side effects of the drugs prescribed for Fairchild during treatment for her injuries and had suggested that she was overmedicated. Fairchild, 385 S.C. at 352, 683 S.E.2d at 822. Palmer had implied that the overmedication, rather than his own negligence, was the source of many of Fairchild’s ailments. Id. The Court of Appeals additionally noted that, to support this theory, “Palmer called and questioned several doctors and nurses to discuss Fairchild’s course of treatment.” Id. The Court of Appeals found that “[t]he following statement by [Palmer’s] counsel made during closing arguments, in particular, was convincing that the charges were relevant: ‘So ask yourself, is it the chronic post-traumatic headache that is the disabling headache, or is it the medication over-use that is the disabling headache?’ ” Id. at 352, 683 S.E.2d at 822-23. The court concluded it was error to refuse to give the requested instruction and further found that, “given the jury’s verdict and the amount of damages at issue,” the ruling could have impacted the jury’s verdict, resulting in prejudice. Id. at 352, 683 S.E.2d at 823.
Palmer acknowledges that the proposed charges correctly state the current law in South Carolina,[4] but maintains there were no references made at trial to a negligent act or omission by a treating physician. Palmer also states that he did not seek a charge on whether the intervening negligence of a third party severed the causal connection between Palmer’s negligence and Fairchild’s injury, and this is an affirmative defense, citing Small v. Pioneer Machinery, Inc., 316 S.C. 479, 450 S.E.2d 609 (Ct. App. 1994) (holding the defense of a third-party’s intervening acts of negligence does not break the causal chain if the acts are foreseeable).
“Ordinarily, a trial judge has a duty to give a requested instruction that correctly states the law applicable to the issues and evidence.” Ross v. Paddy, 340 S.C. 428, 437, 532 S.E.2d 612, 617 (Ct. App. 2000). “Where a request to charge is timely made and involves a controlling legal principle, a refusal by the trial judge to charge the request constitutes reversible error.” Id. “Moreover, when general instructions to the jury are insufficient to enable the jury to understand fully the law of the case and issues involved, a refusal to give a requested charge is reversible error.” Id.
It is the court’s duty to instruct the jury on the law, and “[t]he jury ought not to be left to cut a way through the woods with no compass to guide it.” Collins-Plass Thayer Co. v. Hewlett, 109 S.C. 245, 253-54, 95 S.E. 510, 513 (1918), cited in Eaddy v. Jackson Beauty Supply Co., 244 S.C. 256, 259, 136 S.E.2d 297, 298 (1964).
To warrant reversal, the refusal to give a requested jury charge must be both erroneous and prejudicial.[5] Cole v. Raut, 378 S.C. 398, 663 S.E.2d 30 (2008); Pittman v. Stevens, 364 S.C. 337, 613 S.E.2d 378 (2005); Jones v. Ridgely Commc’ns, Inc., 304 S.C. 452, 405 S.E.2d 402 (1991); Daves v. Cleary, 355 S.C. 216, 584 S.E.2d 423 (Ct. App. 2003); Merritt v. Grant, 285 S.C. 150, 328 S.E.2d 346 (Ct. App. 1985).
We find the charge requested by Fairchild was necessary to allow the jury to properly evaluate proximate cause and resulting damages, and its omission resulted in prejudice to Fairchild. There was an abundance of testimony elicited by Palmer on the allegation that overmedication by Fairchild’s physicians was a possible cause of many of Fairchild’s ailments. Palmer’s message throughout the trial was that he should not be held responsible for any resulting symptoms in Fairchild that might have been caused by or exacerbated by overmedication or the treatment of Fairchild’s physicians.
For example, Palmer called Dr. James Ballenger, a psychiatrist, as an expert witness for the defense. Dr. Ballenger testified “that the most likely reason [Fairchild’s] headaches got so much worse from ’02 to at least ’05 or maybe into ’06, was that . . . a decision was made to go into big-time medications. Oxycontin was the first one.” (Emphasis added.) He opined that Fairchild’s difficulties were likely linked to “rebound headache syndrome . . . meaning you have the headache; you take very strong medicines; it goes away, it comes out of your system, and you get a headache ultimately caused by taking the medicine.” Although Palmer also states there was testimony that the overmedication could also be based on Fairchild’s own conduct, the implication here clearly was that a treating physician made the decision “to go into big-time medications” and that this was not the best course of treatment. Palmer also called Dr. Robert Richey, an internist who had treated Fairchild. Dr. Richey asserted Fairchild “was on a cornucopia of medicine,” and he expressed reservations about several drugs, including Sulfasalazine and Indocin, prescribed by Fairchild’s other physicians and he detailed the potential side effects from these drugs.
Further, in cross-examining Fairchild’s witnesses, Palmer repeatedly questioned the type of medical treatment she had received and whether she had suffered adverse effects, such as increased pain and medical “intoxication,” from the prescribed treatment. The clear purpose of Palmer’s repeated line of questioning in this regard was to reduce the assessment of damages by distinguishing any harm he believed was caused by Fairchild’s medical treatment and alleged overmedication from any harm he allegedly caused in the motor vehicle collision.
Under these particular circumstances, where Fairchild’s treatment and medical condition were the focus of so much of the testimony, the charge should have been given to avoid confusion for the jury and to aid it in properly evaluating proximate cause and damages. We agree with the Court of Appeals that the failure to give the requested charge was error warranting reversal. See, e.g., Eaddy, 244 S.C. at 259, 136 S.E.2d at 298 (concluding where the request to charge was of a controlling principle of law and was timely made, the refusal of the charge was error requiring reversal and a new trial).
C. Palmer’s Motion for an IME by Dr. James Ballenger
Palmer next contends the Court of Appeals erred in holding the trial court did not abuse its discretion in denying his motion for an IME to be performed by Dr. James C. Ballenger.
Palmer filed a pretrial motion, pursuant to Rule 35 of the South Carolina Rules of Civil Procedure, for an IME to be performed on Fairchild by Dr. Ballenger. Dr. Ballenger is a psychiatrist who had been retained by Palmer as an expert witness regarding Fairchild’s alleged injuries.
Fairchild did not oppose an IME, but objected to Dr. Ballenger being designated the examining physician because he had a pre-existing relationship with Palmer. Specifically, Fairchild asserted the following: (1) some four months earlier, Palmer had named Dr. Ballenger as an expert witness for the defense and had paid him a retainer; (2) Dr. Ballenger had already examined some of Fairchild’s medical records that were sent to him by Palmer; (3) Dr. Ballenger had already formed opinions about her condition prior to an IME; (4) Dr. Ballenger was expected to testify as a defense witness at trial; and (5) Dr. Ballenger had been referred to Palmer by another expert who had also been retained by Palmer to question the extent of Fairchild’s injuries.
The trial court denied Palmer’s motion to have Dr. Ballenger perform an IME. The trial court found Dr. Ballenger’s prior work on Fairchild’s case as a retained expert for the defense and the fact that Palmer had sent Dr. Ballenger not only Fairchild’s medical records, but also the transcripts of depositions of some of Fairchild’s treating physicians in advance of his request for an IME, formed the basis for a reasonable objection to the appointment of Dr. Ballenger. The trial court further stated that, upon being instructed to submit a list of alternative physicians for the court to consider for the IME, Palmer had informed the court that he was unwilling to pay for an examination to be made by any physician other than Dr. Ballenger. The trial court concluded that, “given this election by [Palmer], [it was] left with no alternative other than to deny the motion.”
The Court of Appeals determined the trial court did not abuse its discretion in denying Palmer’s motion to have Dr. Ballenger perform an IME on Fairchild. Fairchild, 385 S.C. at 360, 683 S.E.2d at 827. Palmer argues this was error, as Fairchild did not assert a “reasonable objection” under Rule 35(a), SCRCP to the appointment of Dr. Ballenger. Palmer contends a physician’s prior relationship with the defendant and his or her familiarity with the case should not preclude the physician from being selected by the defendant to perform the examination.[6] Both parties have observed that there are no South Carolina decisions specifically addressing the provision for a “reasonable objection” under Rule 35(a), SCRCP.
“In interpreting the meaning of the South Carolina Rules of Civil Procedure, the Court applies the same rules of construction used to interpret statutes.” Maxwell v. Genez, 356 S.C. 617, 620, 591 S.E.2d 26, 27 (2003). “If a rule’s language is plain, unambiguous, and conveys a clear meaning, interpretation is unnecessary and the stated meaning should be enforced.” Id.; see also Stark Truss Co. v. Superior Constr. Corp., 360 S.C. 503, 508, 602 S.E.2d 99, 102 (Ct. App. 2004) (stating where the language of a court rule is clear and unambiguous, the court is obligated to follow its plain and ordinary meaning without resort to forced construction to limit or expand the rule); cf. Muci v. State Farm Mut. Auto. Ins. Co., 732 N.W.2d 88, 93 (Mich. 2007) (“The interpretation of court rules and statutes presents an issue of law that is reviewed de novo.”).
A trial court’s rulings in matters related to discovery generally will not be disturbed on appeal in the absence of a clear abuse of discretion. Dunn v. Dunn, 298 S.C. 499, 381 S.E.2d 734 (1989); Creighton v. Coligny Plaza Ltd. P’ship, 334 S.C. 96, 512 S.E.2d 510 (Ct. App. 1998). An abuse of discretion occurs when the trial court’s order is controlled by an error of law or when there is no evidentiary support for the trial court’s factual conclusions. Sundown Operating Co. v. Intedge Indus., Inc., 383 S.C. 601, 681 S.E.2d 885 (2009).
Rule 35 of the South Carolina Rules of Civil Procedure governs requests for physical and mental examinations and provides in relevant part as follows:
In any case in which the amount in controversy exceeds $100,000 actual damages, and the mental or physical condition (including the blood group) of a party, or of a person in the custody or under the legal control of a party, is in controversy, the court in which the action is pending may order the party to submit to a physical or mental examination by a physician or to produce for examination the person in his custody or legal control. The order may be made only on motion for good cause shown . . . .
The physician of the party to be examined may be present at the examination. Unless the parties agree, or the court for good cause shown determines otherwise, the examination shall be in the county where the person to be examined, or his physician, resides. . . . Upon reasonable objection to the physician designated to make the examination, and if the parties shall fail to agree as to who shall make the examination, the court may designate a physician; but the fact that a physician was so designated shall not be admissible upon the trial.
Rule 35(a), SCRCP (emphasis added). The official Notes to Rule 35(a), SCRCP observe that the first paragraph of Rule 35(a) is based on the Federal Rule on this subject, but the second paragraph is not included in the Federal Rule. The second paragraph was specifically added by this Court to establish limits on the use of this procedure.[7]
Under the plain language of Rule 35(a), the defendant clearly does not have the right to unilaterally select the examining physician; rather, the court alone has the right to make the appointment. The rule contemplates that the parties will confer on this point to make suggestions, but where a “reasonable objection” has been interposed and the parties cannot agree, the court will make the selection. See Rule 35(a), SCRCP (providing upon reasonable objection and “if the parties shall fail to agree as to who shall make the examination, the court may designate a physician”); see also Rule 11(a), SCRCP (stating motions should generally contain an affirmation that the movant’s counsel communicated with opposing counsel prior to filing the motion to make a good faith effort to resolve the matter).
A “reasonable objection” in this context simply means the reason for the objection must not be frivolous. What is reasonable will depend on the individual facts and circumstances of the case, which is precisely why the determination of this matter, as in other discovery and evidentiary disputes, is best left to the sound discretion of the trial court. See generally LeBlanc v. Cambo, 223 A.2d 311 (Conn. C.P. 1966) (observing what is a reasonable objection to a particular physician named to perform a physical examination is a matter that must of necessity be left to the trial court’s inherent discretion).
The purpose of the rule for an IME is to materially aid the jury, not just the defendant, in evaluating the actual damages sustained and arriving at a just verdict. This purpose was recognized long before South Carolina law permitted such examinations. See Best v. Columbia Elec. St. Ry., Light & Power Co., 85 S.C. 422, 428, 67 S.E.1, 3 (1910) (Woods, J., dissenting) (stating nothing can be more helpful to the jury in reaching a just estimate of the damages in a personal injury suit than knowledge of the true nature of the injury, and whenever it appears to the circuit court that an examination by impartial experts would materially aid the jury, the circuit court should order such examination to be made by disinterested experts). Thus, the better rule is that the physician should not be affiliated with either party in order to serve the purposes of Rule 35.
In Richardson v. Johnson, 444 S.W.2d 708, 710 (Tenn. Ct. App. 1969), the Tennessee court, echoing these sentiments, listed a series of guidelines regarding court-ordered physical examinations, including, “The physician must be selected by the court, not the defendant, and must be competent and disinterested.” The court stated “it is clear that the power so vested in the court is a discretionary power, and not an absolute right in the applicant, and that the physician or physicians so appointed act as officers of the court, and not as agents of either party.” Id. at 712. The court further observed that where claims concern injuries or disabilities that are based upon the subjective complaints of the plaintiff, “an impartial physician may have objective means of testing the subjective claims of the plaintiff[.]” Id. As is further explained in a case from a Missouri court:
The law invests the trial court with authority to appoint physicians to make [a] physical examination of the plaintiff in a physical injury suit. The defendant cannot demand it as a matter of right, but the court in its discretion may do it in the furtherance of justice. When the court makes such an appointment, [it] does so because [it] determines in [its] discretion that the case calls for the opinion of disinterested and unbiased physicians, not friends of either parties, whose testimony is likely to be biased.
Atkinson v. United Rys. Co., 228 S.W. 483, 485 (Mo. 1921) (emphasis added) (internal citations omitted). The Missouri court also recognized that a “court could not compel [a] plaintiff to submit to [a physical] examination by the witnesses for the other side,” and “[t]he physicians appointed in such cases are the officers of the court.” Id.
In the current appeal, the finding of the trial court that Fairchild had interposed a reasonable objection to Dr. Ballard’s designation as the examining physician was a proper exercise of the trial court’s inherent discretion to rule on discovery matters and is amply supported by the record. Dr. Ballenger was retained as a defense witness and had reviewed not only Fairchild’s medical records, but also the deposition testimony of other potential witnesses, and it was alleged that he had already formed adverse opinions regarding Fairchild’s injuries before the IME was requested.[8] Under the circumstances present here, we agree with the Court of Appeals that Palmer has shown no abuse of discretion in this regard.
IV. CONCLUSION
We affirm the decision of the Court of Appeals, which found reversible error in the trial court’s failure to submit the issue of punitive damages to the jury and to charge the jury on the intervening negligence of a treating physician, and found the trial court did not abuse its discretion in denying Palmer’s motion for an IME to be performed by Dr. Ballenger.
AFFIRMED.
TOAL, C.J., PLEICONES, KITTREDGE, JJ., and Acting Justice James E. Moore, concur.
[1] Fairchild’s husband was also a plaintiff, but he is not a party to this appeal.
[2] “Palmer” shall also include his construction company, where applicable.
[3] Palmer’s truck weighed 13,740 pounds, the trailer weighed 2,760 pounds, and the motorcycle he was transporting was 655.6 pounds.
[4] See, e.g., Graham v. Whitaker, 282 S.C. 393, 321 S.E.2d 40 (1984); Young v. Tide Craft, Inc., 270 S.C. 453, 242 S.E.2d 671 (1978).
[5] The Court of Appeals correctly cited this standard in its opinion. However, Palmer takes issue with one case the court cited,Wells v. Halyard, 341 S.C. 234, 237, 533 S.E.2d 341, 343 (Ct. App. 2000), which states: “An alleged error is harmless if the appellate court determines beyond a reasonable doubt that the alleged error did not contribute to the verdict.” Palmer contends the “beyond a reasonable doubt” reference is a criminal standard that is not applicable in this civil case. We agree, but find the citation to Wells did not affect the propriety of the conclusion reached by the Court of Appeals in Fairchild.
[6] Palmer cites, e.g., Timpte v. District Court, 421 P.2d 728, 729 (Colo. 1966) (“So long as a plaintiff may select his own doctor to testify as to his physical condition, fundamental fairness dictates that a defendant shall have the same right, in the absence of an agreement by the parties as to who the examining physician will be.”). The Timpte case applying Colorado state court rules, as well as other authority cited by Palmer applying Rule 35 of the Federal Rules of Civil Procedure, are inapposite because those rules do not contain the same provision present in Rule 35(a), SCRCP. Further, we do not agree that a plaintiff chooses his or her own physician. See John E. Parker & Jack L. Nettles, Automobile and Truck Accidents, in 1 The South Carolina Practice Manual199 (William Howard, Sr. & E. Warren Moise eds., 2000) (noting the plaintiff usually did not choose his or her physician; instead, treatment was provided by the physician on call at the hospital or the person was referred to the physician by another physician).
[7] A somewhat similar procedure exists under workers’ compensation law, which allows the appointment of “a disinterested and duly qualified physician or surgeon” to examine the injured claimant. S.C. Code Ann. § 42-17-30 (Supp. 2011).
[8] Fairchild notes that, immediately after the denial of the motion for an IME, Palmer supplemented his discovery responses with a listing of adverse opinions regarding Fairchild’s injuries that Dr. Ballenger planned to testify to at trial. Thus, Dr. Ballenger must have already formed these adverse opinions prior to the time an IME could have been scheduled. Further, Dr. Ballenger did testify at trial as a defense witness for Palmer in accordance with these adverse opinions.
Apr 4, 2012 | Car Accidents, Personal Injury, Uncategorized
This SC Supreme Court case discusses the availability of different courts for different jurisdictional amounts. Magistrate’s Court is the entry level court for relatively minor disputes. The jurisdictional limit is now $7,500. At that limit, these courts can easily adjudicate many claim, including minor automobile accidents. Although originally set up for pro se (unrepresented clients), many lawyers, including our firm, use it to resolve cases. The benefits of Magistrate’s Court is that your case will be reached quickly, usually only a few months. And, with no discovery (interrogatories, requests to produce, depositions), you can end your matter with relatively little costs. You can still request a jury trial, and insurance companies will respond once you actually file a lawsuit.
At Reeves, Aiken & Hightower, LLP, our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. We would like an opportunity to personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today at 877-374-5999 for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Ronnie Judy, Appellant,
v.
Phillip Martin and Dorchester County Sheriff Ray Nash, Defendants,
of whom Phillip Martin is the Respondent.
Appeal from Dorchester County
Patrick R. Watts, Circuit Court Judge
Opinion No. 26604
Submitted October 22, 2008 – Filed February 23, 2009
AFFIRMED
Glenn Walters Sr. and R. Bentz Kirby, both of Orangeburg, for Appellant.
Phillip Martin, of Marion, pro se Respondent.
CHIEF JUSTICE TOAL: In this case, Appellant Ronnie Judy filed a declaratory judgment action seeking to declare an underlying magistrate’s judgment void ab initio for lack of subject matter jurisdiction. The master-in-equity found in favor of Respondent Phillip Martin. On appeal, Appellant claims that the magistrate lacked jurisdiction to render the underlying judgment, and that the master erred by assuming facts not in evidence, finding that Appellant was required to request removal to the court of common pleas, and finding that Respondent would suffer prejudice if the magistrate’s judgment was vacated.
Factual/Procedural Background
On May 8, 2000, Respondent filed suit in magistrate’s court against Appellant, seeking $2,500 in damages. Appellant filed an Answer and Counterclaim in the amount of $6,500. At the time, the jurisdictional limit in magistrate’s court was $5,000.[1] The magistrate issued a trial notice for September 28, 2000. Appellant claims he spoke with the magistrate on September 25, 2000, and that the magistrate told him the case was out of his jurisdiction and would be transferred to the circuit court. Appellant failed to appear at trial and the case was tried in his absence. The magistrate rendered a verdict for Respondent in the amount of $2,555. Appellant appealed to the circuit court on November 6, 2000. The magistrate’s return acknowledged the conversation with Appellant, but indicates that the magistrate told Appellant only that a claim for over $5,000 would be out of his jurisdiction but said nothing about transferring the case to circuit court. The circuit court affirmed the magistrate’s judgment. Appellant did not seek reconsideration from the circuit court or file an appeal.
Shortly after the final judgment, the sheriff issued an execution, which was returned nulla bona. In 2004, the probate court issued an order placing certain real property in Appellant’s name, and Respondent had a Notice of Levy issued on the property. Appellant thereby filed this action for declaratory judgment with the master, who determined that Appellant was not entitled to relief on the grounds that Appellant: (1) failed to seek removal of the case from magistrate’s court; (2) failed to appear in court to press his case for removal; (3) relied upon a verbal ex parte request by telephone for confirmation that the case would be transferred to circuit court; (4) failed to file a motion for reconsideration of the circuit court’s decision to uphold the magistrate’s judgment; (5) failed to appeal to the court of appeals; and (6) abandoned his defense of lack of subject matter jurisdiction until nearly four years later. Appellant appealed the master’s order, and this Court certified the case pursuant to Rule 204(b), SCACR. Appellant presents the following issues for review:
| Did the trial court err in failing to address the issue of subject matter jurisdiction and whether the judgment was void ab initio? |
| Did the trial court err by assuming facts not in evidence and upholding the magistrate’s order based upon what he assumed the trial judge would have ruled? |
| Did the trial court err by ruling that Appellant had to take an affirmative act to attempt to remove his case to Circuit Court? |
| Did the trial court commit error by ruling the Respondent would face prejudice relating to having to make complicated legal arguments, and ignoring the proper relief and the relief sought by the Appellant? |
Standard of Review
Declaratory judgment actions are neither legal nor equitable and, therefore, the standard of review depends on the nature of the underlying issues. Doe v. South Carolina Medical Malpractice Liability Joint Underwriting, 347 S.C. 642, 645, 557 S.E.2d 670, 672 (2001). An action for declaratory judgment that a magistrate’s judgment is void for lack of subject matter jurisdiction is an action at law. Therefore, the master’s findings of fact will not be disturbed on appeal unless found to be without evidence which reasonably supports them. Harkins v. Greenville County, 340 S.C. 606, 621, 533 S.E.2d 886, 893 (2000).
Law/Analysis
In the first question presented for our review, Appellant alleges that the master-in-equity erred in refusing to declare the magistrate’s judgment void ab initio for lack of subject matter jurisdiction. We disagree, and hold that Appellant may not seek relief from the prior unappealed order of the circuit court because the order has become the law of the case.
Under the law-of-the-case doctrine, a party is precluded from relitigating, after an appeal, matters that were either not raised on appeal, but should have been, or raised on appeal, but expressly rejected by the appellate court. C.J.S. Appeal & Error § 991 (2008); see also Bakala v. Bakala, 352 S.C. 612, 576 S.E.2d 156 (2003) (holding that a family court judge could not overrule the prior unappealed order of another family court judge because it had become law of the case); In re Morrison, 321 S.C. 370 n. 2, 468 S.E.2d 651 n. 2 (1996) (noting that an unappealed ruling becomes the law of the case and precludes further consideration of the issue on appeal); Cooper Tire & Rubber Co. v. Perry et al, 261 S.C. 538, 201 S.E.2d 245 (1973) (holding that where a ruling on a demurrer to complaint is not appealed from, it becomes the law of the case); Watkins v. Hodge, 232 S.C. 245, __, 101 S.E.2d 657, 658 (1958) (refusing to consider jurisdictional matter of underlying case where issue had been ruled upon and not challenged on appeal).
In this declaratory judgment action, Appellant seeks to reopen the question of whether the magistrate had subject matter jurisdiction to hear the merits of the underlying dispute. However, Appellant raised this issue and argued it before the circuit court on appeal from the magistrate’s judgment. The circuit court denied Appellant’s appeal and affirmed the magistrate’s judgment. Appellant did not file a motion for reconsideration, an appeal with the court of appeals, or a motion to set aside the judgment. The circuit court’s unchallenged disposition on the magistrate’s subject matter jurisdiction therefore became the law of the case, and this Court declines to reopen that issue in this subsequent action. [2]
Conclusion
For the reasons stated herein, we affirm the ruling of the master-in-equity.
WALLER, BEATTY and KITTREDGE, JJ., concur. PLEICONES, J. concurring in result only.
[1] The current jurisdictional limit of $7,500 took effect on January 1, 2001. S.C. Code Ann. § 22-3-10 (2008).
[2] The remaining three questions presented for our review each involve the master’s findings with regard to the magistrate’s jurisdiction, and are similarly foreclosed by the law-of-the-case doctrine.
Apr 3, 2012 | Brain Injury/Head Trauma, Car Accidents, Personal Injury, Uncategorized, Wrongful Death
Although this is a SC Supreme Court case,it amply demonstrates the lengths multinational corporations will go to fight serious injury and wrongful death claims regardless of your jurisdiction. In this instance, a defective tire lost its tread and caused a family to lose control of their vehicle and rollover. Two were killed, and two were seriously injured. If you have any doubts about how difficult serious injury claims are to litigate, just count the number of lawyers involved on the defense side.
At Reeves, Aiken & Hightower, LLP, all of our attorneys are seasoned trial lawyers with over 70 years combined experience. Whether it is criminal or civil, our litigators are regularly in Court fighting for our clients. Two of our firm’s partners, Art Aiken and Robert Reeves, are inducted lifetime members of the Million Dollar Advocates Forum. Mr. Reeves has also been named one of the Top 100 lawyers for South Carolina in 2012 by the National Trial Lawyers Organization. Our attorneys include a former SC prosecutor, a former public defender, a former NC District Attorney intern, a former Registered Nurse (RN), and former insurance defense attorneys. As a result of their varied backgrounds, they understand the potential criminal, insurance, and medical aspects of complex injury cases. We would welcome an opportunity to sit down and personally review your case. Compare our attorneys’ credentials to any other law firm. Then call us today for a private consultation. www.rjrlaw.com
THE STATE OF SOUTH CAROLINA
In The Supreme Court
Russell Laffitte, as Personal Representative of the Estate of Angela Lynn Plyler, Respondent,
v.
Bridgestone Corporation, Bridgestone/Firestone North American Tire, LLC, Ford Motor Company, Bubba Windham and Chuck Horton d/b/a Vintage Motors, Defendants,
of whom Bridgestone Corporation is the Petitioner.
Russell Laffitte, as Personal Representative of the Estate of Justin Plyler, Respondent,
v.
Bridgestone Corporation, Bridgestone/Firestone North American Tire, LLC, Ford Motor Company, Bubba Windham and Chuck Horton d/b/a Vintage Motors, Defendants,
of whom Bridgestone Corporation is the Petitioner.
Alania Plyler, a minor by and through her Conservator, Russell Laffitte, Respondent,
v.
Bridgestone Corporation, Bridgestone/Firestone North American Tire, LLC, Ford Motor Company, Bubba Windham and Chuck Horton d/b/a Vintage Motors, Defendants,
of whom Bridgestone Corporation is the Petitioner.
Hannah Plyler, a minor by and through her Conservator, Russell Laffitte, Respondent,
v.
Bridgestone Corporation, Bridgestone/Firestone North American Tire, LLC, Ford Motor Company, Bubba Windham and Chuck Horton d/b/a Vintage Motors, Defendants,
of whom Bridgestone Corporation is the Petitioner.
ORIGINAL JURISDICTION
Appeal from Hampton County
Carmen T. Mullen, Circuit Court Judge
Opinion No. 26606
Re-heard September 17, 2008 – Filed March 2, 2009
REVERSED
M. Dawes Cooke, Jr., Todd M. Musheff, and John W. Fletcher, all of Barnwell Whaley Patterson & Helms, of Charleston, and Wallace K. Lightsey, of Wyche Burgess Freeman & Parham, of Greenville, for Petitioner.
F. Arnold Beacham, Jr., of Young & Sullivan, of Lexington, and John E. Parker, Ronnie L. Crosby, and R. Alexander Murdaugh, all of Peters, Murdaugh, Parker, Eltzroth & Detrick, of Hampton, for Respondents.
Elbert S. Dorn and Nicholas W. Gladd, both of Turner Padget Graham & Laney, of Columbia, for Defendant Ford Motor Company, Erin D. Dean, of Tupper Grimsley & Dean, of Beaufort, for Defendant Bubba Windham et al., and Henry B. Smythe, Jr., David B. McCormack, and David S. Cox, all of Buist Moore Smythe McGee, of Charleston, for Defendant Bridgestone/Firestone North American Tire.
E. Warren Moise, of Grimball & Cabaniss, of Charleston, and Debora B. Alsup, of Thompson & Knight, of Austin, Texas, for Amicus Curiae Rubber Manufacturers Association.
John G. Creech, James H. Fowles III, and C. Victor Pyle III, all of Ogletree Deakins Nash Smoak & Stewart, of Columbia, for Amicus Curiae South Carolina Chamber of Commerce.
C. Mitchell Brown, William C. Wood, Jr., A. Mattison Bogan, all of Nelson Mullins Riley & Scarborough, of Columbia, for Amicus Curiae Product Liability Advisory Council, Inc.
CHIEF JUSTICE TOAL: In this product liability case, we granted a petition for a writ of certiorari in our original jurisdiction to review the trial court’s discovery order compelling Petitioner Bridgestone Corporation (Bridgestone) to turn over its steel belt skim stock formula, classified as a trade secret, to Respondent Russell Laffitte. For the reasons detailed below, we find that Respondent has not shown that knowledge of Bridgestone’s trade secret is necessary in order for Respondent to litigate this product liability action. Consequently, the trial court’s order compelling disclosure by Bridgestone of the skim stock formula is reversed.
FACTUAL/PROCEDURAL BACKGROUND
On July 16, 2005, Angela Plyler was driving her 1999 Ford Explorer along Interstate 95 in Hampton County with her three children as passengers. The tread from the left rear tire of the Explorer separated from the tire, allegedly causing the vehicle to overturn and collide with a tree. The single‑car accident killed Angela and her teenage son Justin, and seriously injured her daughters Alania and Hannah.
Respondent, acting as personal representative for the decedents and as conservator for the minor daughters, filed four separate lawsuits against several defendants, including Bridgestone, the manufacturer of the vehicle’s left rear tire. The complaints allege negligence, warranty, and strict liability claims against Bridgestone. As to the negligence allegations, Respondent maintains Bridgestone used an inadequate tire design and failed to use proper manufacturing techniques resulting in a defective tire. In addition, Respondent specifically alleges Bridgestone failed to use sufficient antidegradants to protect the integrity of the tire.
The four cases were consolidated for discovery purposes. Respondent sought to obtain information on the design and manufacturing processes for the subject tire, which had been manufactured in 1996 at Bridgestone’s Hofu Plant in Japan.[1] Bridgestone objected to Respondent’s requests for its steel belt skim stock formula[2] and other related information on the basis that the skim stock formula was a trade secret of Bridgestone.[3] According to Bridgestone, Respondent can prove his claims without discovery of the skim stock formula because he has access to the actual failed tire and can therefore conduct appropriate testing on the tire itself. Respondent counters that without the information related to the skim stock ingredients and manufacturing processes, including any plant-specific deviations from the manufacturing formula, the defect claims cannot be proven.
The trial court held a hearing in January 2007 on Respondent’s motion to compel and Bridgestone’s cross-motion for a protective order. The trial court informed counsel in February 2007 that it would be granting the motion to compel. Prior to entry of the final order, however, the trial court granted Bridgestone’s request that it be allowed to depose Respondent’s experts solely on the issue of Respondent’s need for the skim stock formula. Four experts provided affidavit or deposition testimony on the issue of Respondent’s need for the skim stock formula.
Bridgestone’s expert, Brian Queiser, described the various factors beyond the tire’s chemical composition which could affect the tire’s durability.[4] According to Queiser’s affidavit:
A tire is a highly engineered, complex product, which is the result of a blend of chemistry and engineering. A steel belted radial passenger tire typically contains twenty or more components and more than a dozen different rubber compounds. . . .
. . . Furthermore, the individual components of a steel belted radial tire are designed to work in conjunction with the other components of that tire. As a result, the forces exerted on the tire during its operation are subject to the combined effects of many parameters, including tire size; inflation pressure; component materials, dimensions, and gauge; as well as vehicle characteristics. Therefore, it is not accurate to gauge the performance of any particular tire by focusing on one isolated component or compound…
. . . Given the inherent design of any steel belted radial tire, . . . the areas of the steel belt edges are generally the areas of highest stress/strain. As a result, any steel belted radial tire can sustain a tread/belt separation due to numerous service conditions such as overloading, underinflation, punctures, road hazards, impact damage and so forth.
Queiser further explained that rubber compound formulas cannot be reverse engineered from the finished product because once a tire is cured, the chemical composition changes. Queiser asserted that because the physical properties of the subject tire itself could be inspected and tested, “[a]ccess to the formulas is unnecessary to determine whether the tire was properly designed and manufactured.” As to the trade secret nature of the skim stock formula, Queiser described the formula as “one of Bridgestone/Firestone’s most valuable assets and most closely guarded secrets.”
At his deposition, when asked why the skim stock formula was unnecessary in the instant litigation, Queiser responded as follows:
Well, I guess in this case, as I understand it, all that you would need is what you essentially have. You have the tire, you have the ability to test the tire, test its physical properties. It has been my experience that that is all you need to evaluate the condition of the tire as it relates to its performance. It is my experience that the ability to have the chemical information, the recipe, really doesn’t answer those questions for you. The formula or recipe doesn’t give you the performance, frankly, which is the most important element.
Queiser elaborated that when the federal government investigated certain tires manufactured by Bridgestone/Firestone, Inc., which were similar to tires recalled by Firestone in August 2000, “[f]ormula was not part of the report . . . , it was all about the performance, the design of the tire from a mechanical and structural perspective and the performance of that tire. It was not about the chemical constituents or the recipe.” When pressed by Respondent’s counsel as to whether the skim compound or manufacturing process was ever considered as part of the federal investigation, Queiser answered as follows:
No, I would not say “never considered.” But certainly it was something that was clearly early set aside as a probable cause. We had so many tires produced from so many different plants with that same formula, hundreds of which . . . had absolutely no claim or lawsuit associated with them on that same compound. That formula or compound, per se, no, it wasn’t a factor early on.
Queiser also described how rubber changes over time from exposure to oxygen and ozone, noting that “[t]he environment, the use of the tire or the rubber, how the rubber is used, [and] other external influences naturally are a part of its properties over time.” Queiser acknowledged that oxidation in general would cause changes in the makeup of a rubber compound, but qualified his statement saying that chemical changes in rubber compounds, in his opinion, were still not fully understood by modern science. Queiser also acknowledged that antidegradants are added to the skim stock compound to combat the effects of oxygen on a tire and that there were “other inherent qualities” of other ingredients in the tire which “may also lend themselves to some resistance to change.” Queiser nonetheless adhered to his view that by physically testing the subject tire – perhaps by viewing it at a microscopic level – would be the appropriate way to assess whether there is a design defect.
Finally, Queiser testified that the skim stock compound chemically interfaces with the brass which covers the steel belts, and that this “is one of the essences of the trade secret nature of the chemical composition and the production of that compound.” If a competitor were to have knowledge on this aspect of tire design, Queiser stated that the competitor would essentially acquire “a company’s decades’ worth of experience” which would give it “a huge competitive advantage.”
Respondent presented three experts to opine on the need for the skim stock formula in support of the motion to compel. Robert C. Ochs stated in an affidavit that he had evaluated the subject tire to determine why the tire failed.[5] Ochs averred as follows:
My initial evaluation of the tire reveals that the tire failed prematurely as a result of a defect in the tire. At this time I cannot state whether the defect is in the manufacture or design of the tire.
[Respondent has] requested that I work together with James E. Duddey, Ph.D. and Richard J. Smythe, Ph.D. to determine if the failure was the result of a manufacturing defect or a design defect. In order to perform the specific work requested by [Respondent] it will be necessary to compare the failed tire with its initial physical properties as designed by Bridgestone.
Because this failure involves a separation of the tread belt, it will be necessary to examine the skim compound formula to aid in determining the true nature of the defect. Once the skim compound used to manufacture the subject tire is analyzed, both for its intended physical properties and as compared to the central compound formula, I will then be able to render opinions on the true nature of the defect.
Respondent’s second expert, Dr. James Duddey inspected the failed tire and made the following observations in his affidavit:[6]
Examination of the tire demonstrates a premature failure caused by the separation of the steel belts. The tire shows evidence of surface cracking that could be caused by fatigue or premature rubber aging. The tire tread piece examined demonstrates a degree of hardness in the skim stock that may be related to either the initial physical properties of the rubber compound or premature aging.
Additionally, because Respondent’s counsel specifically requested that Duddey review the skim stock formula to determine whether a design defect existed in the subject tire, and whether changes made to the antidegradant package used in the skim stock formula affected the aging mechanical properties of the tire, Duddey stated that he needed “access to documents showing the initial physical properties of the rubber compound to determine whether there exists a plant specific manufacturing issue or an overall design issue.”
At his deposition, Duddey acknowledged that a number of factors, such as overload and underinflation, could cause belt separation in tires that were properly designed. Duddey also explained that there were multiple possible causes for the increased hardness found in the subject tire, including oxidative aging and heat exposure.
As to needing the skim stock formula in order to determine why the subject tire exhibited hardness, Duddey testified that “as a starter you need to know what the properties were as the tire was designed and manufactured and then you need to try to make some judgment as to if it’s significantly different than when it was manufactured, how it got to that point.” Duddey admitted, however, that both the hardness and the cracking found in the subject tire did not necessarily relate back to the formulation of the compound, but could also have been associated with how the tire had been used. Duddey explained that if Bridgestone provided the skim stock formula for the subject tire, ultimately all he could do was make a comparison as to “what is the general practice that is out there in the supplier literature and the technical literature.”
Respondent’s third expert, Dr. Richard Smythe, was hired to analyze certain materials within the tire deemed important by experts Ochs or Duddey.[7] Smythe indicated that he would design an analytical protocol in order to evaluate certain aspects of the skim stock formula and that if Ochs and Duddey determined that the subject tire did not exhibit the physical properties intended by its design, he would be able to assist in a root-cause analysis of why that tire failed. Smythe asserted that it was “absolutely necessary” that he know all of the ingredients in the rubber compound in order to render his expert opinion in the matter.
After considering the experts’ depositions and the parties’ supplemental briefs, the trial court issued an order compelling discovery and issued a restrictive protective order.[8] Specifically, the trial court found that Respondent had met the prerequisites for discovery of trade secret information under either Rule 26(c), SCRCP, or the South Carolina Trade Secrets Act, S .C. Code Ann. § 39-8-10 et seq. (Supp. 2007) (hereinafter “Trade Secrets Act”). The trial court concluded that Respondent’s experts had established the need for the skim stock formula, stating as follows:
[Respondent’s] claim [is] that the failed tire experienced a steel belt separation. It further appears it is the skim stock compound that is designed to provide adhesion between the steel belts and between surrounding components. As such, the composition of the ingredients, both actual and intended, and the method by which the rubber compound was made is relevant to the inquiry into why the subject tire failed. While it may be possible, it appears unlikely that [Respondent] could seriously pursue a design defect theory without access to the materials and methods used to manufacture the portion of the tire claimed to be responsible for the failure.
Bridgestone thereafter petitioned for certiorari review of the trial court’s order in this Court’s original jurisdiction. The Court granted the petition and Bridgestone raises the following issues for review:
| I. |
What is the appropriate standard for the discovery of trade secret information in a product liability action? |
| II. |
Did the trial court err in finding that Respondent established the requisite need for Bridgestone’s trade secret skim stock formula? |
STANDARD OF REVIEW
Ordinarily, an order compelling discovery is not directly appealable. Lowndes Products, Inc. v. Brower, 262 S.C. 431, 205 S.E.2d 184 (1974). Nevertheless, a writ of certiorari may be issued when exceptional circumstances exist. See In re Breast Implant Product Liability Litigation, 331 S.C. 540, 503 S.E.2d 445 (1998). The instant case presents such exceptional circumstances as it involves a novel question of law in a matter that has been the subject of numerous claims in state and federal courts. A decision by this Court at this time best serves the interests of judicial economy by eliminating the numerous inevitable appeals raising this novel issue of significant public interest. Id. n.2.
On certiorari, review by the Court is confined to the correction of errors of law. Berry v. Spigner, 226 S.C. 183, 84 S.E.2d 381 (1954).
LAW/ANALYSIS
We begin our analysis by putting the legal nature of a trade secret into context. As aptly described in a recent opinion by the Indiana Supreme Court:
Trade secrets are unique creatures of the law, not property in the ordinary sense, but historically receiving protection as such. Unlike other assets, the value of a trade secret hinges on its secrecy. As more people or organizations learn the secret, the value quickly diminishes. For this reason, owners or inventors go to great lengths to protect their trade secrets from dissemination.
The value of trade secret protection to a healthy economy has been widely accepted for some time. Over the last two hundred years, the law has developed mechanisms for accomplishing this end.
Bridgestone Am. Holding, Inc. v. Mayberry, 878 N.E.2d 189, 192 (Ind. 2007) (footnote omitted).
However, it is also true that “trade secrets may be valuable during the course of litigation not involving misappropriation claims, and there are moments when justice requires disclosure.” Id. at 193. In spite of this acknowledgement of the potential value of trade secrets in litigation, the Mayberry court also cautioned that “courts must proceed with care when supervising the discovery of trade secrets, lest the judiciary be used to achieve misappropriation or mere leverage.” Id.
I. Standard for Discovery of Trade Secrets
The question of what standard governs the discovery of trade secret information is a novel issue in South Carolina. Under the Trade Secrets Act, a person “aggrieved by a misappropriation, wrongful disclosure, or wrongful use of his trade secrets may bring a civil action to recover damages incurred as a result of the wrongful acts.” S.C. Code Ann. § 39-8-30(C). The Trade Secrets Act addresses discovery matters and provides in pertinent part as follows:
(A) In an action under this chapter, a court shall preserve the secrecy of an alleged trade secret by reasonable means, which may include granting protective orders in connection with discovery proceedings, holding hearings in-camera, sealing the records of the action, and ordering any person involved in the litigation not to disclose an alleged trade secret without prior court approval.
(B) In any civil action where discovery is sought of information designated by its holder as a trade secret, before ordering discovery a court shall first determine whether there is a substantial need by the party seeking discovery for the information.
“Substantial need” as used in this section means:
(1) the allegations in the initial pleading setting forth the factual predicate for or against liability have been plead with particularity;
(2) the information sought is directly relevant to the allegations plead with particularity in the initial pleading;
(3) the information is such that the proponent of the discovery will be substantially prejudiced if not permitted access to the information; and
(4) a good faith basis exists for the belief that testimony based on or evidence deriving from the trade secret information will be admissible at trial.
S.C. Code Ann. § 39-8-60. Although Respondent suggests that the Trade Secrets Act only applies to those actions alleging trade secret misappropriation,[9] we find that the plain language of § 39-8-60(B) clearly indicates that trade secrets may be protected during discovery not only in misappropriation cases, but in “any civil action” where trade secrets are sought during discovery. See Key Corp. Capital, Inc. v. County of Beaufort, 373 S.C. 55, 59, 644 S.E.2d 675, 677 (2007) (noting that where a statute’s language is plain, unambiguous, and conveys a clear meaning, the court has no right to impose another meaning).
This is not to say, however, that the “substantial need” language of the Trade Secrets Act is the sole relevant inquiry in determining the standard governing trade secret information. As Respondent points out, the South Carolina Rules of Civil Procedure also provide for the protection of trade secret information when such information is sought during discovery. Specifically, Rule 26(c), SCRCP, allows for protective orders under certain circumstances as follows:
Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the court in which the action is pending . . . may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden by expense, including one or more of the following: . . . (7) that a trade secret or other confidential research, development, or commercial information not be disclosed or be disclosed only in a designated way.
In determining whether trade secret information is subject to a protective order under Rule 26(c)(7), federal and state courts typically apply a balancing test that incorporates a “relevant and necessary” standard for the party seeking to discover the trade secret information.[10] See generally 8 Charles Alan Wright, Arthur R. Miller & Richard L. Marcus, Federal Practice and Procedure § 2043 (2d ed. 1994) (hereinafter “Wright & Miller”); James J. Watson, Annotation, Discovery of Trade Secret in State Court Action, 75 A.L.R.4th 1009, 1028-30 (1990). The test is a three-part inquiry:
| 1. |
The party opposing discovery must show that the information sought is a trade secret and that disclosure would be harmful. |
| 2. |
If trade secret status is established, the burden shifts to the party seeking discovery to show that the information is relevant and necessary to bring the matter to trial. |
| 3. |
If both parties satisfy their burden, the court must weigh the potential harm of disclosure against the need for the information in reaching a decision. |
See also Mayberry, 878 N.E.2d at 193; Coca-Cola Bottling Co. of Shreveport, Inc. v. Coca-Cola Co., 107 F.R.D. 288, 292-93 (D. Del. 1985).[11]
We disagree with Respondent’s argument that our determination that the Trade Secrets Act applies to any civil action impermissibly supplants a rule of civil procedure. See Baggerly v. CSX Transp., Inc., 370 S.C. 362, 635 S.E.2d 97 (2006) (rejecting an interpretation of a statute which would have contravened a rule of evidence). Unlike the statute at issue in Baggerly, § 39-8-60 does not improperly limit the operation of Rule 26, but rather is consistent with Rule 26 in that both provide for reasonable restrictions on the discovery of trade secrets. The Trade Secrets Act therefore does not supplant, but rather complements, Rule 26(c), SCRCP. Cf. Mayberry, 878 N.E.2d at 194 (finding that the application of Rule 26 to trade secrets “should be informed by Indiana’s enactment of the Uniform Trade Secrets Act”).
To this end, we hold that the balancing test associated with the discovery of trade secret information under Rule 26(c), SCRCP, governs the discovery of trade secret information in this matter. Regarding the requirement that the trade secret information must be “relevant,” we hold that the information must be relevant not only to the general subject matter of the litigation, but also relevant specifically to the issues involved in the litigation. See Duplan Corp. v. Deering Milliken, Inc., 397 F.Supp. 1146, 1185 (D.S.C. 1974). For the trade secret information to be deemed “necessary,” we hold that the party seeking the information “cannot merely assert unfairness but must demonstrate with specificity exactly how the lack of the information will impair the presentation of the case on the merits to the point that an unjust result is a real, rather than a merely possible, threat.” In re Bridgestone/Firestone, Inc., 106 S.W.3d 730, 733 (Tex. 2003); accord Bridgestone/Firestone, Inc. v. Superior Court, 9 Cal.Rptr.2d 709, 713 (Cal. Ct. App. 1992) (holding that a party seeking discovery must make a “particularized showing” that “the information sought is essential to a fair resolution of the lawsuit”). “Implicit in this is the notion that suitable substitutes must be completely lacking.” Mayberry, 878 N.E.2d at 196. In other words, the trial court must evaluate whether there are reasonable alternatives available to the party seeking the discovery of the information, and ultimately, the trial court must require the discovery of a trade secret only when “the issues cannot be fairly adjudicated unless the information is available.” Wright & Miller, § 2043.
From here, we turn to an analysis of the second issue on appeal in order to determine whether Respondent meets the “relevant and necessary” standard of proof for discovery of a trade secret.
II. Application of the standard to Respondent’s request for Bridgestone’s skim stock formula
Bridgestone argues that the trial court erred in finding that discovery of the skim stock formula was necessary to Respondent’s case. Specifically, Bridgestone contends that: (1) the expert testimony does not establish that if the experts were provided the skim stock formula and related manufacturing information, they would necessarily be able to opine on a defect; and (2) other methods, such as testing the tire itself, are available to Respondent. We agree.
In our view, Respondent’s experts’ reasons for opining that the formula was necessary for their analyses do not rise to the level of specificity required for discovery of trade secrets. For example, expert Smythe did not elaborate on why it was “absolutely necessary” that he know the skim stock formula in order to render his expert opinion in the matter. Furthermore, although expert Ochs concluded in his affidavit that it was necessary to compare the failed tire with its initial physical properties because the tire’s failure involved a separation of the tread belt, Ochs never explained how the occurrence of a tread belt separation should result in the automatic conclusion that the belt separation was related to the initial physical properties of the tire requiring disclosure of the skim stock formula. Given Queiser’s and Duddey’s testimony on the many potential causes of tread belt separation related to the usage of the tire rather than its initial physical properties, we find that Ochs’s testimony lacks the precision required for Respondent to show that disclosure of Bridgestone’s skim stock formula is necessary to this case. See also Bridgestone/Firestone, Inc. v. Superior Court, 9 Cal.Rptr.2d at 716 (finding that the tire expert did not “describe with any precision how or why the formulas were a predicate to his ability to reach conclusions in the case”).
Expert Duddey’s reasoning for acquiring the formula was similarly vague. In his affidavit, Duddey initially attributed the apparent surface cracking on the subject tire to either “fatigue or premature rubber aging,” and the degree of hardness in the skim stock to “either the initial physical properties of the rubber compound or premature aging.” When later asked at deposition to elaborate on the need for the skim stock formula, Duddey responded that “as a starter you need to know what the properties were as the tire was designed and manufactured and then you need to try to make some judgment as to if it’s significantly different than when it was manufactured, how it got to that point.” Duddey provided no indication in his response at deposition that he had examined and subsequently discarded the alternative theories propounded in his affidavit for the tire’s failure. For this reason, we find that this testimony fails to adequately articulate how disclosure of the skim stock formula is critical to the analysis in this case.
We find also find no evidence that the skim stock formula is essential to a defect inquiry. Bridgestone’s expert Queiser clearly indicated that because a tire is a complex object made up of many compounds, it would be inaccurate to gauge the performance of a particular tire by focusing on one isolated component or compound. Queiser also noted how properties of the skim rubber compounds change as the tire ages. Respondent’s experts, however, focused solely on the tire’s initial properties without addressing Queiser’s assertions regarding the interaction of compounds in the tire during the curing process and throughout the tire’s lifetime. In this way, we find Respondent’s experts failed to provide a sufficiently complete argument as to why the skim stock formula was necessary to their analyses of this case.
Furthermore, the experts’ testimony provides no detailed indication as to how the case is incapable of being fairly adjudicated without the trade secret information. See In re Bridgestone/Firestone, Inc., 106 S.W.3d at 733 (holding that the party seeking trade secret information cannot simply claim unfairness but must show “with specificity how the lack of the information will impair the presentation of the case on the merits to the point that an unjust result is a real, rather than a merely possible, threat”). While we recognize the logic in Respondent’s theory that in order to prove a tire design or manufacturing defect, it would be useful to have knowledge of the original recipe and whatever manufacturing deviations were made from that recipe, we reiterate that the standard for discovery of trade secret information is “necessary,” not “useful.” See Bridgestone/Firestone, Inc. v. Superior Court, 9 Cal.Rptr.2d at 715 (finding that “it is not enough that a trade secret might be useful” to the party seeking discovery).
Additionally, we find that the trial court failed to analyze the availability of reasonable alternatives to the discovery of the trade secret. Specifically, a chemical analysis necessitating the discovery of Bridgestone’s skim stock formula is not the sole, or even the best, way to test for defects. We find an October 2001 report issued by the National Highway Traffic Safety Administration (NHTSA) particularly instructive to the Court in this regard.[12] The stated purpose of the federal investigation documented in this report was to determine whether Firestone’s August 2000 recall of Wilderness AT tires was adequate in scope. The report focused on non-recalled tires that were manufactured primarily as original equipment for Ford Explorers, yet were similar to the tires recalled by Firestone in 2000. The study used peer tires, mostly Goodyear Wrangler tires, in order to compare performance results to the Wilderness AT tires being evaluated.
The methods of the federal recall investigation, employed on both Firestone tires and the peer tires, included “thorough analyses of available data regarding the performance of tires in the field; shearography analysis to evaluate crack initiation and growth patterns and their severity in tires obtained from areas of the country where most of the failures have occurred; and observations, physical measurements, and chemical analyses.” NHTSA Report at iii. Additionally, the NHTSA conducted belt peel adhesion testing, a physical test on one-inch wide samples of tire tread which are essentially pulled by a tensile test machine “to measure the force required to ‘peel’ the two belts apart.” Id. The report explained the purpose of this test as follows:
[T]he properties of the belt wedge and skim rubber compounds change as the tire ages. These changes reduce the compounds’ resistance to fatigue crack growth and catastrophic failure. One measure of the degradation of the belt rubber is the peel adhesion test. This test is most directly related to the belt rubber’s resistance to a final, catastrophic belt-leaving-belt failure.
Id. The report specifically noted there was “no evidence of a belt wire-to-rubber adhesion issue.” Id. at 23 n.38.
The NHTSA concluded that a safety-related defect existed in Firestone Wilderness AT P235/75R15 and P255/75R16 tires manufactured prior to May 1998 at specified manufacturing facilities. One of the primary findings was that the design of the shoulder pocket of the tires could “cause high stresses at the belt edge and lead to a narrowing of the wedge gauge at the pocket,” indicated by “a series of weak spots around the tire’s circumference, leading to the initiation and growth of cracks” in the tires. Id. at 30.
We find it significant that the NHTSA, without focusing on the skim stock formula, conducted physical testing of the tires and ultimately arrived at a scientifically-supported conclusion that there was a design defect which caused belt separation. This reliance on a structural analysis to determine defect, rather than a chemical analysis, provides tangible proof that other adequate means of testing for defects are available to Respondent and that therefore, Respondent’s case will not be substantially impaired if he is denied access to the trade secret information. We note that other jurisdictions have similarly recognized that physically testing the tire itself for defects, including testing at a molecular level if necessary, may be a suitable substitute for testing based on the skim stock formula. See Mayberry, 878 N.E.2d at 196 (noting that testimony revealed that an inspection of the failed tire appears to be “more than an adequate substitute for examining the skim stock formula”); In re Bridgestone/Firestone, Inc., 106 S.W.3d at 733 (finding that because a tire’s physical properties can be tested without knowing the recipe for the skim stock compound, tests on a finished tire are “more probative of defect than its skim stock formula would be”).
Further, the discovery already available to Respondent for analysis of the alleged defect includes information about development, design review, and testing of tires manufactured with the same specifications as the tire in this case. Bridgestone has also produced or agreed to produce analysis reports of inner liner problems with similar tires, reports from cut tire analysis done at the Hofu plant, and records and depositions from similar cases involving Bridgestone tires. The variety of information these documents encompass provides Respondent with “suitable substitutes” for analysis of the skim stock formula itself. Mayberry, 878 N.E.2d at 196. Thus, particularly in light of the discovery obtainable in this case, Respondent has not shown that the case is incapable of being fairly adjudicated without the trade secret information.
For these reasons, we hold that under the proper standard governing the discovery of trade secrets, knowledge of Bridgestone’s skim stock formula is not “necessary” in order for Respondent to litigate the instant product liability action.[13] Accordingly, we hold that the trial court erred in finding that Respondent was entitled to discovery of Bridgestone’s trade secret information.
We note that Bridgestone should not use our holding in this matter at trial to suggest weaknesses in Respondent’s case due to his experts’ ignorance about the formula. See In re Bridgestone/Firestone, Inc., 106 S.W.3d at 734 (recognizing that it would be unfair for the manufacturer to argue the plaintiff’s case was impaired due to lack of evidence that the manufacturer withheld);Bridgestone/Firestone, Inc. v. Superior Court, 9 Cal.Rptr.2d at 716 n.8 (noting that it would be unfair for the manufacturer to challenge an expert at trial about his knowledge of the skim stock formula). Indeed, if at any time during the litigation, Respondent can satisfy his burden of showing necessity, this matter could be revisited. See In re Bridgestone/Firestone, Inc., 106 S.W.3d at 734 (finding that while the mere possibility of unfairness is not enough to warrant disclosure of the information, this issue can be addressed should it materialize).
CONCLUSION
For the foregoing reasons, we hold that Respondent failed meet the standard for the discovery of Bridgestone’s trade secret information, and therefore, we reverse the decision of the trial court compelling the disclosure of Bridgestone’s trade secret.
BEATTY, KITTREDGE, JJ., and Acting Justice James E. Moore, concur. PLEICONES, J., dissenting in a separate opinion.
JUSTICE PLEICONES: I respectfully dissent, and would affirm the circuit court’s order compelling petitioner to disclose the skim stock formula. Since this order is before us on a common law writ of certiorari, we may reverse the trial court’s decision only if it is affected by an error of law. Berry v. Spigner, 226 S.C. 183, 84 S.E.2d 381 (1954). We cannot consider the facts, “except to ascertain whether the order is wholly unsupported by the evidence.” Id. Since I find evidence in the record, particularly the affidavit of Dr. Duddey, which supports the circuit court’s order, I would affirm.
In my opinion, the majority reverses not because there is no evidence, nor because the circuit court committed an error of law, but because, in the majority’s view, the petitioners’ experts were more persuasive than those of respondent. For example, the majority states respondent’s experts did not address Queiser’s assertion that a tire’s performance is not dependent on its initial composition. Dr. Duddey, however, acknowledged that post-manufacturing factors could explain the tire’s failure, but also maintained that he needed the formula in order to determine whether a design defect, perhaps in the antidegradant package component of the formula, contributed to its failure. In my view, whether this was sufficiently specific is a judgment call for the trial judge.
Moreover, the majority opines that “a chemical analysis necessitating the discovery of Bridgestone’s skim stock formula is not the sole, or even the best, means to test for defect” and holds there is “no evidence that the skim stock formula is essential to a defect inquiry.” It is not respondent’s burden under either the Trade Secrets Act or Rule 26 (c) (7), SCRCP to demonstrate that knowledge of the trade secret is the “best” or “sole” way for it to proceed, nor that it is “essential,” but rather that it has a “substantial need”[14]for this “relevant and necessary”[15] information. Applying our limited scope of review on certiorari[16] to the order before us, I would hold there is evidence to support the trial judge’s findings that respondent has met his burden.
I would affirm.
[1] The subject tire is a P235/75R15 Radial ATX steel belted radial passenger tire and was designed for use as a replacement tire. At the time of the accident, the subject tire was being used as a spare and was the only Bridgestone tire on the Explorer; Michelen manufactured the other three tires.
[2] According to Bridgestone’s expert witness, steel belt skim stock is “a specifically formulated rubber compound calendered onto the steel cord to form the steel belts in a steel belted radial passenger or light truck tire,” which is “formulated to provide, among other things, adhesion between the rubber and steel cord, and between the belts and surrounding components.” The formula of a rubber compound such as the steel belt skim stock “typically contains the chemicals or ingredients used in the compound; the quantities or relative percentages of those ingredients; and the manner in which those ingredients are processed to form the compound and give it the desired physical properties after it is vulcanized, or cured.”
[3] Respondent has not disputed that the skim stock formula is a trade secret. Under South Carolina law, a trade secret is defined as information, including a formula or process, that:
(i) derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by the public or any other person who can obtain economic value from its disclosure or use, and
(ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
S.C. Code Ann. § 39-8-20(5)(a) (Supp. 2007).
[4] Queiser, an employee of Bridgestone/Firestone, Inc. since 1994, holds a bachelor’s degree in aeronautical and astronautical engineering as well as a master’s degree in engineering mechanics. He stated that he has “personally developed steel belted radial tires from concept through . . . production” and that his experience included analysis of tire failure.
[5] Ochs holds a bachelor’s degree and a master’s degree in mechanical engineering. Michelin employed Ochs from 1969-1994, during which time his work included analysis of failed passenger and light truck tires.
[6] Duddey holds a Ph.D. in physical organic chemistry and worked for Goodyear Tire and Rubber Company for thirty-two years.
[7] Smythe, an analytical chemist, has been exposed to at least one proprietary skim stock formula and has performed work on rubber compounds to determine why they failed. Smythe is not a tire engineer and does not claim to have expertise in tire design or manufacturing.
[8] The trial court found that a protective order could be fashioned to protect the trade secret status of the information, but “[b]ecause the parties are in a better position to narrow the issues on the terms of a protective order,” the trial court instructed the parties to collaborate on the specific terms of the protective order. There is no protective order in the record presumably because Bridgestone filed its petition for a writ of certiorari less than a month after the trial court’s order.
[9] In support of his position, Respondent asserts Griego v. Ford Motor Co., 19 F.Supp.2d 531, 533 (D.S.C. 1998), in which the federal district court held that the Trade Secrets Act does not apply to a product liability action because it “is not based on misappropriation of a trade secret or protection against such a misappropriation.” We decline to adopt the reasoning set forth inGriego and note that a federal court decision interpreting state law is not binding on this Court. Blyth v. Marcus, 335 S.C. 363, 517 S.E.2d 433 (1999).
[10] The language of Rule 26(c), SCRCP, mirrors that of federal Rule 26(c). Because there is no South Carolina precedent construing this rule, federal interpretation of Rule 26(c) is persuasive authority. See State v. Colf, 332 S.C. 313, 317, 504 S.E.2d 360, 361 (Ct. App. 1998).
[11] Likewise, in jurisdictions where trade secrets are protected by a codified evidentiary privilege, the courts apply a similar balancing test. See, e.g., In re Cont’l Gen. Tire, Inc., 979 S.W.2d 609 (Tex. 1998); Bridgestone/Firestone, Inc. v. Superior Court, 9 Cal.Rptr.2d 709 (Cal. Ct. App. 1992).
[12] See U.S. Dep’t of Trans., NHTSA, Office of Defects Investigation, Engineering Analysis Report and Initial Decision Regarding EA00-023 Firestone Wilderness AT Tires (October 2001) (hereinafter “NHTSA Report”).
[13] Contrary to the dissent’s assertion, we do not reverse the trial court’s order compelling discovery based on our view of the experts’ testimonies. Rather, we reverse because Respondent failed as a matter of law to meet the applicable standard governing the discovery of trade secrets.
[14] S.C. Code Ann. § 39-8-60 (B).
[15] Rule 26 (c)(7), SCRCP.
[16] Compare Bridgestone Americas Holding, Inc. v. Mayberry, 878 N.E.2d 189 (Ind. 2007); In re Bridgestone/Firestone, Inc., 106 S.W.3d 730 (Tex. 2003) citing In re Continental Tire, Inc., 979 S.W. 2d 609, (Tex. 1998), relied upon by the majority, both of which came before the reviewing courts under the more liberal “abuse of discretion” standard of review.
