Both the blogosphere and MSM covered the South Carolina Supreme Court’s recent reversal of a $31 million verdict in a Ford Bronco rollover case. Branham v. Ford Motor Co., 2010 S.C. LEXIS 291 (South Carolina August 16, 2010). Most of the discussions of the Branham case focused on the plaintiff lawyer’s inflammatory closing argument and/or the strange (and prejudicial) alignment of parties. But even though it was not a drug or device case, the Branham opinion contains other rulings that might affect our clients in significant (and positive) ways.

The facts are straightforward. Hale was driving her 1987 Ford Bronco under the speed limit. The passengers were children, including her daughter in the front passenger seat and Plaintiff Branham in the backseat. The children were “all excited.” Branham, 2010 S.C. LEXIS 291 at *1. No one was wearing a seatbelt. Hale turned to the backseat to tell the kids to quiet down. (You just know a bunch of jurors at this point are nodding and thinking, “Been there.”) When she took her eyes off the road, the Bronco veered. Hale overcorrected and the vehicle rolled over. Branham suffered a brain injury.

Branham sued both Ford and Hale. Branham brought negligence and strict liability claims against Ford regarding the rear seatbelt system and the vehicle’s handling and stability. Branham alleged that Ford negligently failed to test the rear seatbelt sleeve and that Ford should have used a different suspension system. One of the witnesses called by Plaintiff was a former vice-president at Ford. That sort of thing is what we defense lawyers politely call a “challenge.” The jury awarded $16 million in compensatory damages and $15 million in punitives.

As already mentioned, Branham sued Hale as well as Ford. “At trial, Branham did not seriously pursue the claim against Hale.” 2010 S.C. LEXIS 291, *2. Hale cross-claimed against Ford, but that action was severed. At trial, Hale and her counsel sat on the plaintiff’s side of the courtroom. The lawyer for Hale cross-examined only one witness, Branham’s economic expert. It was not exactly a probing cross-examination: “[H]ow many millions are in a billion?” Id. at * 64. No doubt co-defendant Ford looked over at Hale’s counsel and said something like, “Thanks. Thanks a lot.” Meanwhile, when Branham’s lawyer in closing argument addressed the liability of defendant Hale, here is what he said: “[S]he took her eyes off the road. But did she do something that was wrong. She did what all reasonable drivers would do, which was she tried to get back on the road.” Id. Golly, we’re waiting for a plaintiff lawyer to be nearly so understanding and generous in the next closing argument against one of our clients.

Nevertheless, the trial judge treated Ford and Hale as co-defendants and — get this — they split the ‘defense’ peremptory challenges. That’s nutty. The good news is that the South Carolina Supreme Court made clear that a trial court has discretion to realign parties to prevent the sort of unfairness that occurred in Branham. Id. at * 67. The bad news is that the decision whether or not to realign the parties “lies within the sound discretion of the trial court and will not be disturbed on appeal absent a showing of an abuse of discretion and resulting prejudice.” Id. Both abuse of discretion and prejudice seem present here, but because Ford did not preserve the issue for review, the South Carolina Supreme Court spoke only in generalities. Retrial, if it happens, will be interesting.

Remember how even-handed and — gosh darn it — sweet, Branham’s closing argument was about defendant Hale? Not quite the same when it came to Defendant Ford. The South Carolina Supreme Court concluded that “[t]he closing argument of Branham’s counsel was designed to inflame and prejudice the jury.” Id. at * 50. Branham’s counsel persistently embroidered on the theme of dollars over lives: “This is how Ford looks at this. That little bit of thirty people being killed every year didn’t matter. Those thirty extra people getting killed in a year didn’t matter to them because it was just a little bitty number.” Id. at *50-51. And he goes on. And on. Maybe if he said it once or twice he would have gotten away with it. [We knew a plaintiff lawyer who always seemed to get away with improper questions or arguments by promising the judge that he “wouldn’t dwell on it.” How does that work? And yet it did. And Branham’s attorney should have followed that example, or the advice of the Talking Heads: “Say something once, why say it again?”] This argument is not only inflammatory and monotonous, it improperly asked “that the jury punish Ford for harm done to Branham and others.” Id. at * 52 (emphasis in original). So, kudos for getting a $31 million verdict, but maybe not-so-much if that verdict was obtained via a closing argument that had reversal written all over it.

Branham’s attorney jacked up the punitive damages in another impermissible way. He “went far beyond the pale in submitting evidence of Ford’s senior management compensation.” Id. at * 62. The evidence included salaries, bonuses, and stock options for several members of Ford’s management. The South Carolina Supreme Court had no problem finding that “admission of this evidence was error and highly prejudicial.” Id. at * 63. Of course, when plaintiffs cross-examine company executives they always elicit testimony on compensation, on the theory that such compensation might affect credibility. So juicy is this sort of testimony that there’s a danger a plaintiff might call a company executive to the witness stand merely to highlight compensation. And so we offer a modest proposal: if the executive testifies in defendant’s case, then compensation is fair game during cross-examination by the plaintiff, but if the plaintiff calls the witness the court should perform a thorough 403 analysis before permitting questioning on compensation.

Some of the other rulings have more applicability to our fun-filled field.

The trial judge dismissed Branham’s strict liability attack on the seatbelt sleeve because the seatbelt sleeve was simply not defective. Not surprisingly, Ford believed that this finding should also compel the dismissal of the negligence claim. The trial judge disagreed with Ford but, fortunately, the Supreme Court agreed with Ford. After all, if there’s nothing wrong with the seatbelt, where’s the negligence? Branham claimed that Ford negligently failed to test the seatbelt, but the South Carolina Supreme Court agreed with Ford that “there is no separate ‘failure to test claim’ apart from the duty to design and manufacture a product that is not defective and unreasonably dangerous.” Id. at * 6. Thus, the Branham case is significant for finally interring the failure-to-test claim.

As in many jurisdictions, South Carolina has both a consumer expectations and risk-utility test for product liability claims. The plaintiff’s case will often disappear if the plaintiff is forced to show a less dangerous feasible alternative. (A lawn mower without blades would be safer, but it wouldn’t be feasible.) The less dangerous alternative is part of the risk utility test, not the consumer expectations test. On appeal in Branham, Ford argued valiantly for application of the risk utility test when the claim is defective design. More important (for our purposes), Ford argued successfully. The court was persuaded that while a consumer expectations test might make sense in a manufacturing defect case, the risk utility test should apply to a design defect claim because it centers upon the alleged defectively designed product and provides “objective factors” for the jury. Id. at * 28. Accordingly, the South Carolina Supreme Court announced a major product liability ruling that will affect many cases going forward: “In sum, in a product liability design defect action, the plaintiff must present evidence of a reasonable alternative design. The plaintiff will be required to show how his alternative design would have prevented the product from being unreasonably dangerous.” Id. at *33.

Thank you, Ford. Whether that new test will change things for Ford on retrial is unclear. It is possible that plaintiff can make out a less risky alternative. Branham’s expert testified that the Bronco used twin I beams when a McPherson strut would have been safer. But Branham’s attorney relied on several bits of Ford internal documents generated after the accident and also relied on evidence of similar accidents that were not sufficiently similar. Both bothered the court. In particular, the court found that “Ford was prejudiced by Branham’s unrelenting pursuit of post-distribution evidence on the issue of liability.” Id. at * 36-37. The court recognized that as a matter of policy, the law should encourage manufacturers continually to try to improve their products. Id. at 42-43. Thus, whether the 1987 Bronco was defectively designed “must be determined as of the 1986 manufacture date of the vehicle. Ford’s 1986 design and manufacture decision should be assessed on the evidence available at that time, not the increased evidence of additional rollover data that came to light after 1986.” Id. at *43. Whether Branham can prove a less risky alternative without the post-distribution and other accidents evidence remains to be seen.

In its verdict, the jury apportioned responsibility 55% to Ford and 45% to Hale. With joint and several liability and the reality of Ford’s balance sheet vs. Hale’s, it’s clear that Ford would have been on the hook for the full amount. The South Carolina Supreme Court held that “[a]llocating fault between Ford and Hale served no legitimate purpose.” Id. at * 54. The trial court justified the allocation question “to ensure that any punitive damage award was supported by a negligence cause of action, and not the strict liability claim.” Id. But Ford had proposed a detailed verdict form that would have specified findings of negligence or design defect . As happens all too often, the trial court rejected the defendant’s detailed verdict form. It’s as if some courts don’t want things to be too clear. The problem with the form used by the court was that the jury “would take the cue from the apportionment question and inflate the actual damage award to ensure Branham received a full recovery from the one deep-pocket defendant.” Id. at * 56. That conclusion reflects an admirable degree of realism in an appellate court decision.

Maybe we’re wrong, but it seems that South Carolina sees a disproportionate amount of mass tort liability litigation. Consequently, the Branham decision is disproportionately significant. And we are disproportionately pleased with it.