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From Products Liability Law Daily, July 12, 2013

State statute requiring expert affidavit for design defect claim not applicable in action against corporate defendant

By Kathleen Bianco, J.D.

A plaintiff alleging defective design against a corporation was not required to submit an expert affidavit as to the alleged design defect when she filed her complaint, a federal district court in South Carolina held (Oakman v. Lincare Inc., July 10, 2013, Childs, M.).

Background. Jeanette Oakman filed a product liability action against Airsep Corporation, Chart Industries, Inc., and Lincare Inc. after her husband was fatally injured by an oxygen concentrator machine owned by Lincare and manufactured by Airsep. Oakman alleged that the machine, which caught fire while it was being used, had been negligently designed. The defendants filed motions to dismiss based on Oakman’s failure to submit an expert affidavit as to the defective design by a professional engineer when she submitted her complaint.

Pleading requirements. In an effort to prevent frivolous lawsuits, South Carolina requires the contemporaneous filing of an expert affidavit with the complaint in certain lawsuits alleging professional negligence. South Carolina law (S.C. Code Ann. § 15-36-100(B)) provides that …[I]n an action for damages alleging professional negligence against a professional licensed by or registered with the State of South Carolina and listed in subsection (G) or against any licensed health care facility alleged to be liable based upon the action or inaction of a health care professional licensed by the State of South Carolina and listed in subsection (G), the plaintiff must file as part of the complaint an affidavit of an expert witness which must specify at least one negligent act or omission claimed to exist and the factual basis for each claim based on the available evidence at the time of the affidavit (emphasis added).

In support of their motions to dismiss, the defendants argued that the plaintiff was required to submit an expert affidavit in this case because the design of the device was performed by professional engineers. The plaintiff countered, asserting that she was not required to submit an affidavit because the statute only applied to claims against individuals and not corporations. Upon review of the plain language of the statute, the court agreed with the plaintiff finding that the affidavit requirement did not apply to actions against corporate defendants. Accordingly, the defendants’ motions to dismiss were denied.

The case number is 1:13-cv-00428-JMC.

Attorneys: Tom G. Woodruff (Woodruff Law Offices) for Oakman. Erin Lawson Coia (Lewis Brisbois Bisgaard and Smith) for Lincare, Inc. Jack Gordon Gresh (Hall Booth Smith and Slover) for Airsep Corp. and Chart Industries, Inc.

Companies: Lincare Inc.; Linde A.G (a/k/a Linde, LLC); Airsep Corporation; Chart Industries, Inc.

MainStory: TopStory EvidentiaryNews DesignManufacturingNews MedicalDevicesNews SouthCarolinaNews

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