United States District Court, D. South Carolina, Beaufort Division
C. NORTON UNITED STATES DISTRICT JUDGE
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.
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.
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
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.
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.
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
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.
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
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.
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.
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. The court addresses each argument in turn.
Feasible Alternative Design
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.
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").Caruso Dep.
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
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.
(Third) of Torts: Prod. Liab. § 2, cmt. d (Am. Law Inst.
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
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.
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.
the court denies Ford's motion to the extent it depends
on plaintiff's failure to present a feasible alternative
Suicide Precludes Wrongful Death Recovery
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
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))).
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.
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