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Wickersham v. Ford Motor Co.

United States District Court, D. South Carolina, Beaufort Division

July 10, 2016

FORD MOTOR COMPANY, Defendant. CRYSTAL L WICKERSHAM, as Personal Representative of the Estate of John Harley Wickersham, Jr., Plaintiff,



         The following matter is before the court on defendant Ford Motor Company's ("Ford") motion for summary judgment. For the following reasons, the court grants in part and denies in part Ford's motion.

         I. BACKGROUND[1]

         On February 3, 2011, decedent John Harley Wickersham, Jr. ("Wickersham") was involved in a single car accident while driving a 2010 Ford Escape. Wickersham suffered numerous permanent injuries from the crash, which produced continuous, extreme pain. Wickersham committed suicide on July 21, 2012. Plaintiff alleges that Wickersham's suicide was caused by the pain he suffered as a result of the accident.

         Wickersham had a history of mental illness. In 2003, long before the accident, Wickersham was diagnosed with bipolar disorder by his family practitioner, Dr. Richard Bolt, who referred him to a psychiatrist, Dr. Perry Trouche. Wickersham made no suicide attempts at or near the time of this diagnosis, but did tell his wife, plaintiff Crystal L. Wickersham ("plaintiff"), and Dr. Trouche that he had suicidal thoughts. Pl.'s Response Ex. 1, Pl. Depo. 140:23-25; Pl.'s Response Ex. 2, Trouche Depo. 21:11-13. These suicidal thoughts eventually subsided and Wickersham agreed to report any future suicidal ideation. Trouche Depo. 22:25, 27:6-12. Wickersham saw Dr. Trouche from October 2003 until June 2005. Id. at 21:7-10, 33:4-18. Years later, in January of 2011, Wickersham again sought treatment from Dr. Trouche for worsening depression and suicidal ideation. Trouche Depo. 38:2-13. Dr. Trouche recommended hospitalization, which Wickersham declined. Id. at 39:7-23. Dr. Trouche prescribed a new depression medication, and Wicksersham felt better after six days. Id. at 70:7-71:21.

         Wickersham worked as a pharmacist and consultant. His career began in the pharmacy department at Roper Hospital in 1982. Pl. Depo. 22:20-25. Around 2003, Wickersham left his full-time position at Roper Hospital to work for InfuScience. Id. at 24:19-25:19. In 2008, Wickersham left InfuScience and took a full-time position at Beaufort Memorial Hospital on a two-year contract. Id. at 26:8-23, 27:16-28:1. During that time, Wickersham would work in Beaufort for seven days and then return to Charleston for seven days. Id. at 38:15-20. While in Charleston, Wickersham continued to perform consulting work for Roper Hospital. Id. at 42. When his contract with Beaufort Memorial ended, Wickersham worked on an "as needed" basis at Beaufort Memorial in addition to his consulting work for Roper Hospital. Id. at 28:2-25. Wickersham briefly took a position at the Medical University of South Carolina, but left after a week due to disagreements with some of the Medical University's policies. Id. at 29:2-5, 30:6-7. After that, Wickersham looked for full-time work in the Charleston area, but could not find any. Id. at 30:20-23. Wickersham then continued to work on a contract and consulting basis for Roper Hospital, Beaufort Memorial, and other medical practices until the time of the accident. Id. at 31-32.

         The accident occurred on the night of February 3, 2011. While attempting to make a left turn, Wickersham's car went through an intersection and hit a tree on the front passenger side. Wickersham was taken to the Medical University of South Carolina for treatment. Wickersham suffered a variety of injuries in the accident, including a broken rib, a broken upper jaw, broken cheek bones around his left eye, a fractured skull, and a ruptured left eye. Pl.'s Depo. 211-14. Wickersham required numerous surgeries and treatments during his initial hospitalization and in the months that followed. Id. at 230:7-12, 233:20-234:20. Most significantly, Wickersham experienced extreme pain as a result of his injuries, which drove him to seek relief from pain specialists, pain medication, and a nerve block. Id. at 236-238. Unfortunately, these treatments were largely ineffective. Id. at 237:18-19, 239:23-240:1. The pain not only affected Wickersham's body, but also his ability to work, and consequently, his family's finances. Id. at 240: 9-24. Wickersham eventually lost his left eye in November 2011, which resulted in further emotional trauma. Id. at 230:13-231:7, 244:16-25.

         In April 2012, Wickersham was admitted to Roper Hospital for suicidal thoughts. Id. at 246:12-20. At the time, Wickersham told plaintiff that "[she] need[ed] to put [him] somewhere or [he was] going to hurt [himself]." Id. at 247:16-18. The Roper Hospital staff felt that Wickersham's pain medications were causing his suicidal thoughts, so they took him off of the pain medications, which relieved Wickersham of his suicidal thoughts, and he was released from the hospital. Id. at 248:6-10, 15-17. The pain, however, did not subside, and Wickersham suffered withdrawals from his pain medications. Id. at 248:10, 19-24.

         After Wickersham was released from the hospital, plaintiff regularly asked him whether he had any suicidal thoughts. Id. at 250:24-251:11. Wickersham told plaintiff that he occasionally had such thoughts, but he was not on the verge of committing suicide. Id. On July 21, 2012, however, Wickersham committed suicide by overdosing on prescription pain medication.

         Plaintiff filed two actions, one individually and one as personal representative of Wickersham's estate, bringing claims for negligence, strict liability, and breach of warranty. Plaintiff contends that Wickersham's injuries and eventual suicide were caused by a defective airbag restraint system in the 2010 Ford Escape, which deployed the airbag too late. Pl.'s Response 23-24. On November 24, 2015, Ford filed the instant motion for summary judgment. On December 29, 2015, plaintiff filed a response, and on January 8, 2016, Ford filed a reply. The court held a hearing on the matter on May 12, 2016, and the matter is now ripe for the court's review.

         II. STANDARD

         Summary judgment shall be granted "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine dispute as to any material fact and that the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). "Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Id. at 248. "[S]ummary judgment will not lie if the dispute about a material fact is ‘genuine, ' that is, if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

         "[A]t the summary judgment stage the judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Id. at 249. When the party moving for summary judgment does not bear the ultimate burden of persuasion at trial, it may discharge its burden by demonstrating to the court that there is an absence of evidence to support the non-moving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The non-movant must then "make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. The court should view the evidence in the light most favorable to the non-moving party and draw all inferences in its favor. Anderson, 477 U.S. at 255.


         Ford seeks summary judgment on three grounds, arguing that: (i) plaintiff cannot recover under any theory of liability because plaintiff cannot show the existence of a feasible alternative design; (ii) suicide necessarily constitutes an independent act which breaks the causal chain between the defendant's actions and the decedent's death, thereby precluding any wrongful death action; and (iii) plaintiff cannot recover punitive damages because there is no evidence that Ford acted recklessly, willfully, or wantonly, and any award of punitive damages would violate Ford's due process rights.[2] The court addresses each argument in turn.

         A. Feasible Alternative Design

         Ford first argues that plaintiff has failed to present evidence of a feasible alternative design. Under South Carolina law, "the exclusive test in a products liability design case is the risk-utility test with its requirement of showing a feasible alternative design." Branham v. Ford Motor Co., 701 S.E.2d 5, 14 (S.C. 2010). To satisfy the alternative design requirement, a plaintiff must "show how his alternative design would have prevented the product from being unreasonably dangerous." Id. at 16. "This presentation of an alternative design must include consideration of the costs, safety and functionality associated with the alternative design." Id.

         Plaintiff contends that Wickersham's injuries were caused by the 146-millisecond delay between the vehicle's initial impact with the pole, which activated the seatbelt pretensioners and the deployment of the airbag. Pl.'s Resp. Ex. 5, Caruso Report 13; Pl.'s Resp. Ex. 12, Caruso Depo. 81:7-13. This delay allowed Wickersham to "move forward into . . . the deployment zone of the airbag while it was inflating, " causing an impact between his body and the airbag. Pl.'s Resp. Ex. 6, Kennet Report 5-6. The airbag system and seatbelt pretensioners are controlled by the Restraint Control Module ("RCM"). The RCM receives crash data from sensors located in the vehicle and processes that data through an algorithm, which then determines whether to activate the seatbelt pretensioners, deploy the airbags, or both. Caruso Report 5. This algorithm is developed and calibrated using crash testing data. Plaintiff's engineering expert, Christopher Caruso ("Caruso"), contends that the 2010 Ford Escape's RCM was defective because its algorithm was not calibrated to account for the type of crash Wickersham experienced-namely, an offset pole crash. Id. 17-18. Caruso further opines that this defect could have been avoided had Ford conducted more thorough testing and calibrated the RCM algorithm to account for such a crash. Caruso Report 18- 19. Though plaintiff seems to suggest that the RCM algorithm could have been better calibrated in a number of different ways, Caruso specifically states that Ford could have programmed the RCM to raise the mile-per-hour threshold for airbag deployment in low speed crashes in which the airbag has not deployed more than 50 milliseconds after activating the seatbelt pretensioners (hereinafter, the "raised threshold approach").[3]Caruso Dep. 110:16-111:23, 137:13-138:17.

         Ford argues that plaintiff's proposals do not count as legitimate alternative designs because they are purely "conceptual, " and thus, plaintiff has provided no analysis of the "‘costs, safety and functionality associated with the alternative design' as required by Branham." Def.'s Mot. 26 (quoting Branham, 701 S.E.2d at 16)); Def.'s Reply 10. Ford highlights the fact that if the RCM were better calibrated for the sort of crash presented in this case, it would impact the timing of airbag deployment in other crash scenarios, which may reduce the overall safety of the vehicle. Def.'s Reply 11. However, Caruso's testimony clearly indicates that other manufacturers have utilized the raised threshold approach in the past. See Caruso Depo. 137:19-138:24 (explaining that designs created by Delco-Caruso's former employer-incorporated such a system and would not have deployed the airbag if used in this case). The fact that this approach was used in the past certainly suggests that it is feasible from a cost, safety, and functional perspective.

         To the extent Ford argues that plaintiff can only prevail if it provides an actual algorithm that Ford could have used in the 2010 Escape, Ford seeks to impose an evidentiary burden well above any sensible interpretation of Branham. The Branham court relied on the Restatement (Third) of Torts in adopting the risk-utility test for design defects. See Branham, 701 S.E.2d at 14 ("The third edition [of the Restatement of Torts] effectively moved away from the consumer expectations test for design defects, and towards a risk-utility test. We believe the Legislature's foresight in looking to the American Law Institute for guidance in this area is instructive."). In applying the alternative design requirement of the risk-utility test, the Restatement (Third) of Torts

does not [] require the plaintiff to produce a prototype in order to make out a prima facie case. Thus, qualified expert testimony on the issue suffices, even though the expert has produced no prototype, if it reasonably supports the conclusion that a reasonable alternative design could have been practically adopted at the time of sale.

         Restatement (Third) of Torts: Prod. Liab. § 2, cmt. d (Am. Law Inst. 1998).

         The fact that other manufacturers successfully implemented the raised threshold approach provides more than a reasonable basis for concluding that Ford could have done the same here. Other courts in this district have adopted a similar analysis in applying South Carolina law. See, e.g., Quinton v. Toyota Motor Corp., No. 1:10-cv-02187, 2013 WL 1680555, at *3 (D.S.C. Apr. 17, 2013) (denying summary judgment on the basis of documentary evidence and deposition testimony suggesting the existence of a feasible alternative design, with no mention of such a design ever having been produced); Little v. Brown & Williamson Tobacco Corp., 243 F.Supp.2d 480, 496 (D.S.C. 2001) (denying summary judgment where plaintiff "provided an affidavit by Dr. Farone suggesting numerous technologies which in his opinion could have been utilized by Defendants to provide a safer cigarette since the early 1960's at the latest").

         Ford highlights the case of Holland ex rel. Knox v. Morbark, Inc., in which the South Carolina Court of Appeals stated that "a conceptual design is insufficient to establish a reasonable alternative design." 754 S.E.2d 714, 720 (S.C. Ct. App. 2014). In that case, the plaintiff's expert opined that an alternative system for locking the hood of a wood chipper could have prevented the plaintiff's injuries. Id. However, the expert "was unaware of anyone . . . in the industry that had performed a feasibility analysis for an alternative design, " and his design was considered "conceptual, " in that he never prepared an actual design that for the system he proposed. Id.

         The Holland case is distinguishable from the case at hand for at least two reasons. First, as discussed above, there is evidence that the raised threshold approach has been implemented by other manufacturers in the industry. Caruso Depo. 137:19-138:24. Thus, unlike in Holland, plaintiff has presented more than a purely speculative assertion of feasibility. Second, Ford's attempt to apply Holland to Caruso's proposal depends on a semantic dispute over the term "design." Ford clearly regards the RCM algorithm as the "design, " and because Caruso cannot present the actual algorithm that would be used for a 2010 Escape, Ford argues that plaintiff has only set forth a strategy for producing an alternative design, but has not produced the "design" itself. While the algorithm might be considered the design in some sense, the court thinks that the algorithm is better understood as the product, or at least, a component thereof. The algorithm is used to perform a function-namely, manage the airbag deployment and activation of the seatbelt pretensioners. It is a system of information, much like a physical product may be a system of tubes, iron, wires, etc. When viewed in this light, it becomes clear that a plaintiff seeking to introduce an alternative design of the algorithm need not produce the actual algorithm, as this would constitute the production of a prototype, which is clearly not required in other instances. See Restatement (Third) of Torts: Prod. Liab. § 2, cmt. d (Am. Law Inst. 1998) ("[Q]ualified expert testimony on the issue suffices, even though the expert has produced no prototype."). Where, as here, the plaintiff is able to identify a specific design approach that has been implemented elsewhere in the industry and has specifically explained how that approach would be implemented into the algorithm at issue, the plaintiff has presented sufficient evidence of a feasible alternative design to survive summary judgment.

         Therefore, the court denies Ford's motion to the extent it depends on plaintiff's failure to present a feasible alternative design.

         B. Suicide Precludes Wrongful Death Recovery

         Ford next argues that plaintiff cannot recover on her wrongful death claim because Wickersham's suicide precludes any showing of proximate cause as a matter of law. Def.'s Mot 6-9. Plaintiff argues that Wickersham's suicide falls within a recognized exception to the general rule that suicide precludes any showing of proximate cause. Pl.'s Resp. 10-23.

         To prevail on a wrongful death claim in South Carolina, a plaintiff must establish causation. Land v. Green Tree Servicing, LLC, No. 8:14-cv-1165, 2015 WL 6247450, at *4 (D.S.C. Oct. 13, 2015) ("[T]he plaintiff in a wrongful death action must establish that the wrongful act or negligence of the defendant caused the death of the decedent. The standard tort principles that apply to causation in negligence cases apply to any action for wrongful death regardless of the basis of the underlying cause of action."). Though the cases addressing this issue are few and far between, South Carolina courts do appear to hold that, as a general rule, suicide constitutes an independent act of the decedent, that extinguishes the line of causation connecting a defendant's actions to the decedent's death. See Scott v. Greenville Pharmacy, 48 S.E.2d 324, 328 (S.C. 1948) ("The voluntary willful act of suicide of an injured person, who knows the purpose and physical effect of his act, is generally held to be such a new and independent agency as does not come within and complete a line of causation from the injury to the death so as to render the one responsible for the injury civilly liable for the death." (emphasis added)); see also Watson v. Adams, No. 4:12-cv-03436, 2015 WL 1486869, at *6 (D.S.C. Mar. 31, 2015) ("Where an action is brought under a wrongful death statute the general rule is that suicide constitutes an intervening force which breaks the line of causation from the wrongful act to the death . . . ." (quoting 11 A.L.R.2d 751 (1950))).

         Nevertheless, South Carolina does appear to recognize that, in some instances, a decedent's suicide will not preclude a wrongful death action. In Scott v. Greenville Pharmacy, the only case in which the Supreme Court of South Carolina explored the subject, a plaintiff-executrix brought a wrongful death action against a pharmacy that allegedly sold the decedent barbiturates in violation of state law. 48 S.E.2d at 325. The decedent developed an addiction, and eventually, "[w]hile under the influence of the drug, or while suffering from moroseness, caused by its habitual use, [the decedent] committed suicide by hanging." Id. In addressing the issue of causation, the court stated that an intervening act will not insulate the original wrongdoer from liability if "the intervening act and the injury resulting therefrom are of such character that the author of the primary negligence should have reasonably foreseen and anticipated them in the light of attendant circumstances." Id. at 328 (quoting Locklear v. Se. Stages, 8 S.E.2d 321, 325 (S.C. 1940)). Though the court ultimately held that, under the facts presented, it could not find "that the unlawful sale of the barbiturate capsules brought about a condition of suicidal mania as the natural and probable consequence of the sale, or that this result should have been reasonably foreseen by the respondent, " id., it is significant that the court did not find that the "general" rule disposed of the need for case-specific analysis. See id. ("Can it be reasonably said that [the decedent's] tragic end was a natural and probable consequence of the sale to him of the barbiturate capsules, and should it have been foreseen in the normal course of events? Each case must be decided largely on the special facts belonging to it."). The court placed a great deal of emphasis on the fact that the decedent acted on his own in purchasing the drug and these purchases were the pharmacy's only connection to the case. Id. at 327. The court even recognized that the case did not present a situation where the decedent "was no longer a free agent[, ] incapable of controlling his own conduct, and bent upon suicide, " suggesting that a claim might lie in such circumstances. Id. at 328.

         Over forty years later, the South Carolina Court of Appeals relied on the Scott decision to grant summary judgment in favor of a bartender who allegedly sold alcohol to an intoxicated patron in violation of state law. Crolley v. Hutchins, 387 S.E.2d 716, 717 (S.C. Ct. App. 1989). After being arrested and taken to the county jail, the patron attempted suicide. Id. The patron then brought a negligence claim against the bartender, seeking recovery for injuries suffered in the suicide attempt. Id. The Crolley court, like the Scott court, analyzed the foreseeability of the plaintiff's injuries and made no mention of any categorical rule precluding causation in suicide cases. Id. at 718 ("In this case, Crolley's attempted suicide was [] too remote ...

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