The South Carolina Supreme Court recently shut down an attempt by the Plaintiffs’ bar to make an end-run around the rules of evidence. The case centered around the admissibility of expert testimony that would have made Rule 703 about as effective as the Maginot Line. See , Op. No. 27168 (Aug. 29, 2012).
Here’s how the play developed: It was alleged that defendant CAS designed and manufactured a medical device that monitored the breathing and heart rates of newborn children. If either of those rates became too fast or too slow, the device would sound an alarm, and data about the event would be recorded. The device also had a separate system that tracked whether the alarm sounded. On the night of April 10, 2004, Plaintiffs’ daughter, who was being monitored by the device, experienced a significant decline in her breathing and heart rates and ultimately passed away. Her cause of death was later diagnosed as Sudden Infant Death Syndrome.
Make no mistake: this was an unspeakable tragedy for Plaintiffs’ family, and our deepest sympathies go out to them for their loss. It is regrettable that any discussion of products liability cases almost always involves difficult facts. This is especially true in this case and cases like it, where the injured party is a child and the nature of the injury is death. We here at Abnormal Use would much prefer a world where there was no need to report on such cases ever again.
In any event, a case was eventually brought against CAS on the theory that their device failed. Plaintiffs’ testimony (which was ostensibly obtained at deposition) was that the CAS device’s alarm never sounded. As a consequence of the device failing, Plaintiffs did not know that their daughter’s breathing and heart rates were falling, and never had an opportunity to resuscitate her.
Here’s where the theory of the case gets interesting. Plaintiffs’ counsel alleged that the CAS’s alarm did not sound due to defect in the device’s software. In furtherance of this theory, counsel retained three experts in software design to discuss “spaghetti code,” which is apparently when an electronic signal working its way through software code gets misdirected by certain external inputs, resulting in the device’s failure to perform as intended. In this case, it was alleged that the CAS device properly detected that Plaintiffs’ daughter was experiencing respiratory distress, but that due to spaghetti code, the signal to the device’s alarm was misdirected, causing the alarm to never sound.
Let’s stop here for a second. Hypothetically, there are three possible explanations for why the device “failed.” One is that the device was defective. However, the device was tested and found to function properly. Therefore, it was conceded that “hardware error” was not at issue. The second cause of failure is that the software failed, as discussed above. The third cause—which is not really failure—is that the device functioned as intended, but that Plaintiffs never heard the alarm sound. This case essentially boiled down to a contest between “software error” and “complaint error.”
Plaintiffs’ position was that software error must necessarily have been the cause, according to an analysis which was novel in the state of South Carolina: the “reasoning to the best inference” analysis. Or as I like to call it, the Sherlock Holmes analysis. In The Sign of the Four, Sherlock Holmes famously quipped, “When you have eliminated the impossible, whatever remains, however improbable, must be the truth.” And that is the intellectual underpinning of the “reasoning to the best inference” analysis. If all the possible causes for an event can be identified and eliminated, save for one, the one possible cause that remains must have been the actual cause for the event’s occurrence.
In this case, hardware error had been eliminated. And from Plaintiffs’ perspective, complaint error had been eliminated. There was testimony from each adult in the house at the time of the decedent’s passing that no alarm had sounded. Therefore, again from Plaintiffs’ perspective, the only possible cause that remained was software error.
Critically, the Supreme Court seemed willing to accept the Sherlock Holmes analysis as a viable way to establish circumstantial evidence of causation, at least in the abstract. But the Court was not impressed with how it was applied in this case. First, there was the inherent, self-serving nature of the testimony. Of course Plaintiffs’ position would be that the alarm never sounded. It would seem somewhat unfair to allow complaint error to be ruled out by the unilateral testimony of the Plaintiffs. Especially since the device was tested later and found to work properly. Relatedly, there was an equally likely explanation for the device’s alarm to have not been heard: Plaintiffs slept through it. The Court’s opinion notes that the CAS device reported that the alarm had sounded. Ultimately, these questions created an issue of fact that prohibited complaint error from being ruled out as a possible cause of the alarm’s failure.
There was a third problem with Plaintiffs’ case though. None of Plaintiffs’ experts had been able to identify any portion of the source code that would have misdirected the alarm’s signal. Instead, they had merely postulated that, because hardware error and complaint error had (in their opinion) been eliminated, software error must have been the cause. Furthermore, according to their “spaghetti code” theory, a misdirected signal could have been triggered by any type of unanticipated external input, which may never be capable of identification.
As if this weren’t enough to give the Court heartburn, there was more to Plaintiffs’ theory. For proof that the device was subject to software error, Plaintiffs wanted to introduce other complaints (approximately fifty) that had been filed with the federal Food and Drug Administration of the CAS device’s failure. There was no way to determine the underlying circumstances of these other complaints, nor was there any way to substantiate them.
Under these circumstances, the Supreme Court did the only thing it reasonably could do: the Court shut the Plaintiffs’ case down. There was absolutely no evidence that the CAS device failed. At best, there was a question of fact as to causation between software error and complaint error. Ordinarily, for purposes of summary judgment (which is when Plaintiffs’ case was dismissed by the trial court), a question of fact is sufficient to survive and present the case to the jury. But in a products liability case, there must be some evidence that the product in question was defective. In this case, there was none. And it is a matter of black-letter law in South Carolina that products are not presumed defective merely because an injury occurred.
All things considered, it appears reasonably clear that Plaintiffs were trying to use the Sherlock Holmes theory as a back-door way of introducing the doctrine of res ipsa loquitur into South Carolina law. Res ipsa is the theory that an injury would not have occurred but for the fact that some negligent act also occurred which caused the injury. Although res ipsa is a favorite topic of first-year Torts professors, in South Carolina, the doctrine has been expressly rejected. First, in Snow v. City of Columbia, 305 S.C. 544, 409 S.E.2d 79 (Ct. App. 1991), and more recently, in Watson v. Ford Motor Co., 389 S.C. 434, 699 S.E.2d 684 (2010). It is worth noting that the same counsel who represented the plaintiffs in Watson also represented Plaintiffs in Graves. He gets a big ol’ Abnormal Use A+ in persistence.
Graves is an excellent decision for defendants in products liability actions. However, it remains to be seen how the Sherlock Holmes analysis will be used, and perhaps abused, in subsequent litigation, now that it appears to be a viable method of establishing causation.