South Carolina is a lovely state with mostly lovely weather, though this time of year its appearance on the map looks like the country’s jutted chin daring a hurricane to sock it. South Carolina courts have been known to sock it to defendants, particularly in asbestos cases.
Luckily, asbestos has nothing to do with today’s case, Britt v. Sorin Grp. Deutschland GmbH, 2023 U.S. Dist. LEXIS 158410 (D.S.C. Sept. 6, 2023). From the perspective of your friendly neighborhood defense hack, the court’s decision is more good than bad. The defendant medical device manufacturer won all its summary judgment motions, except for punitive damages. The case is frankly a bit weird, because the plaintiff seemed to be claiming that the defendant’s device, which regulates blood temperature during an operation, caused an unusual bacterial infection years after the fact with no intervening problems.
The case went through the MDL process and was eventually remanded to the District of South Carolina. The defendant filed a summary judgment motion seeking dismissal of the claims for manufacturing defect, express warranty, implied warranty, negligent misrepresentation, misrepresentation via omission, violation of the South Carolina Unfair Trade Practices Act, and punitive damages.
The plaintiff contended that the device was defective because the introduction of water during the manufacturing process contaminated the device, leading to the formation of a biofilm. But the plaintiff alluded to no evidence that the device was defectively manufactured and did not conform to design specifications. Rather, this claim was “more appropriately characterized as one for design defect because it alleges a potential design flaw” in the device. (The complaint included a claim for design defect, but the defendant did not seek summary judgment on that claim.) This was another instance of a plaintiff trotting out a design defect claim masquerading as a manufacturing defect claim. It usually does not work. It did not work here.
There was no evidence that the defendant “communicated any affirmation of fact, promise, or description” regarding the device “that became the basis of the bargain” in the sale of the device. The plaintiff relied on certain statements in the device’s Instructions for Use (IFU), but the IFU is a communication to the medical provider, not the patient. Because the plaintiff presented no evidence that the defendant made any express warranties to the medical provider that extended to the patient-plaintiff as a third-party beneficiary, the express warranty claim was a goner.
Unlike with the express warranty claim, South Carolina law might allow for a third-party beneficiary claim for an implied warranty. But the manufacturer had conspicuously disclaimed the implied warranties of merchantability and fitness for a particular purpose. There was some squabbling over whether the disclaimer occurred before or after finalization of the purpose, but, in the end, the facts supported enforcement of the disclaimer and dismissal of the implied warranty claim.
The negligent misrepresentation claim failed here because the defendant dealt only with the hospital, not the plaintiff, and the plaintiff never owned the product. Nor was there any reliance. Moreover, South Carolina has not extended a negligent misrepresentation claim beyond statements made for pecuniary purposes resulting in pecuniary loss.
Misrepresentation via Omission
Under South Carolina law, a duty to disclose exists only when there is some sort of fiduciary relationship between the parties. No such fiduciary relationship (indeed, no direct relationship or communication of any kind) existed between the manufacturer and the plaintiff. Accordingly, the court dismissed the claim of misrepresentation by omission.
South Carolina Unfair Trade Practices Act
Once again, the absence of any communication between the defendant and the plaintiff doomed the legal claim. As with the misrepresentation claims, the plaintiff pointed to the omission of a warning. And, as with the misrepresentation claims, the fact that the plaintiff never purchased the product from the defendant and never relied on the defendant spelled the end of the claim.
Well, you can’t win them all. Thedefendant did not move on design defect, and the court saw some room for a factual dispute as to whether the defendant’s conduct (presumably in designing the device) was “willful, wanton, or in reckless disregard of the Plaintiff’s rights so as to warrant punitive damages.” Sigh. In our opinion, it should be exceedingly hard to make out a claim for punitive damages for a design defect claim. There is no aspect of alleged lying, as there is with failure to warn or misrepresentation. Except for the rarest of scenarios, getting the risk-benefit calculation wrong does not seem to involve any bad faith or even recklessness. But our opinion is not the law in South Carolina or anywhere else, so we’ll just have to swallow this one nasty bit in what is, overall, a fairly tasty opinion. Call it shrimp and grits, with a small side of liver.