SOUTH CAROLINA
New Case Addressing Limits on Expert Testimony in State Court
In a brand new opinion, South Carolina’s Supreme Court proclaimed an end to the seemingly limitless breadth of the admissibility of expert testimony. In Watson v. Ford Motor Company, Op. No. 26786 (Filed March 15th, 2010) the Court gave additional analytical heft to its 2009 decision in State v. White, 382 S.C. 265, 676 S.E.2d 684 (2009), which has been read as the Court’s direct instruction to the trial courts that they more stringently enforce Rule 702 of the South Carolina Rules of Evidence, which sets forth the admissibility criteria for expert testimony. In Watson, the Court articulated analytical instructions so clear that they suggest the Court had been eager for the right case to declare its preference for more selective admissibility of expert testimony.
The case involved a single car motor vehicle accident which was caused by the Ford Explorer in which the plaintiffs were traveling, and which was under the apparent control of the vehicle’s cruise control feature, unexpectedly and without human stimulus accelerating, causing the vehicle to roll over and the plaintiffs to be ejected. The injuries were severe, and the jury awarded eighteen million dollars actual damages to the two plaintiffs. Ford appealed on several bases, most notably that the trial court erred in admitting the testimony of plaintiffs’ experts Bill Williams and Dr. Antony Anderson.
According to the Court’s recitation of the facts, “[the plaintiffs’] theory of the case was that the Explorer’s cruise control system was defective because it allowed electromagnetic interference (EMI) to affect the system.” Bill Williams, testifying in the field of “cruise control diagnosis”, was presented in order to offer evidence from third parties of similar cruise control failures in other Ford products. Anderson, an expert in EMI, offered his theory as to how EMI can cause the very malfunction which allegedly caused the subject accident. After reviewing the record, the Supreme Court ruled that both experts should have been excluded.
With respect to Williams, the Court noted that in the course of the motion in limine concerning Williams’ testimony, Williams had described his experience as involving training, consulting, and developing and writing software for the automotive industry, with particular current emphasis on issues involving brake failures. He acknowledged that prior to being retained in the lawsuit, he had no professional experience of any kind in cruise control systems, never had compared the cruise control system in the Explorer in question to any other system, and never had published a paper on cruise control systems. Despite these limitations, the trial court qualified Williams as an expert in “the training and operation of the cruise control and brakes” and permitted him to testify on “cruise control diagnosis.” While the casual reader might believe this was obvious error on the trial court’s part—and while, indeed, that conclusion is clear from a reading of Rule 702—in practice qualification of experts on so specious a basis has been utterly routine.
So the Supreme Court’s determination that Williams was not qualified and should have been excluded was no small surprise. Specifically, the Court ruled that Williams’ lack of pre-litigation experience with the subject matter of the litigation—during the motion in limine he described “how he taught [himself] the Explorer’s cruise control, or speed control system”—was fatal. Because it appeared he “merely studied the Explorer’s system just before trial”, he was not qualified to discuss the cruise control system, despite his vast qualifications in other aspects of automotive engineering. South Carolina’s trial judges undoubtedly will hear this principle argued frequently in the years to come.
While Williams should have been excluded due to inadequate qualification, the Court’s finding concerning Dr. Anderson concerned the other cornerstone of expert testimony’s admissibility: methodological reliability. Dr. Anderson’s testimony was damning to the defense: it established not only that EMI could cause a malfunction in the cruise control system, but that Ford had a technically and economically feasible alternative at hand: the use of a “twisted pair” wiring schematic. Examining Anderson’s qualifications, the Supreme Court noted that while an eminently qualified electrical engineer, Dr. Anderson had no particular experience with cruise control mechanisms, or even with the automotive industry as a whole. Coupling this experiential inadequacy with Dr Anderson’s inability to support with meaningful explanation his theory that “twisted pair” wiring would have prevented the particular malfunction that he theorized, the Court found that testimony concerning the twisted pair wiring theory—i.e., the feasible alternative—should have been excluded as unreliable.
The Court went a step further, ruling that Dr. Anderson’s testimony concerning the specific mechanism by which the EMI caused the cruise control malfunction should have been excluded as well. While acknowledging that Dr. Anderson was qualified to testify to EMI and to its effects generally, the Court concluded that his testimony was the product of unreliable methods. He had not published any peer reviewed paper on EMI’s effect on cruise control systems, and could not identify the source of the EMI he claimed had caused the malfunction. Further, he had not tested his theory and, indeed, testified that his theorized EMI reaction could not be replicated in a laboratory or other testing environment. In light of this, the Court found that Dr. Anderson’s EMI theory was the product of unreliable methods and should have been excluded.
Encapsulating the trial court’s error, the Supreme Court rendered what to litigants and practitioners in South Carolina must be considered the opinion’s critical statement: “In our view, the trial court’s error in admitting Dr. Anderson’s testimony is largely based on solely focusing on whether he was qualified as an expert in the field of electrical engineering and failing to analyze the reliability of the proposed testimony.” This statement must be taken as an exceedingly clear signal to trial courts in South Carolina: the days of admitting any testimony solely because its subject matter falls within the expert’s general area of expertise—the standard practice in this state—are over. That an expert’s methodology makes no sense and cannot be confirmed by scientific methods affects the opinion’s admissibility and not merely its weight, as so often had been proclaimed. Should the trial courts heed the Supreme Court’s obvious intent, this opinion has the potential to effectuate a fundamental shift in personal injury litigation of all kinds: product liability, retail liability, trucking and transportation, construction and beyond.
YOUNG CLEMENT RIVERS, LLP
Duke R. Highfield
Benjamin A. Traywick
Young Clement Rivers, LLP
28 Broad Street
Charleston, SC 29401
(843) 720-5456
Fax: (843) 579-1330
dhighfield@ycrlaw.com
btraywick@ycrlaw.com
www.ycrlaw.com