PUBLISHED
UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT
No. 17-2131
CRYSTAL L. WICKERSHAM; CRYSTAL L. WICKERSHAM, as Personal Representative of the Estate of John Harley Wickersham, Jr.,
Plaintiffs - Appellees,
v.
FORD MOTOR COMPANY,
Defendant - Appellant.
Appeal from the United States District Court for the District of South Carolina, at Beaufort. David C. Norton, District Judge. (9:13-cv-01192-DCN; 9:14-cv-00459-DCN)
Argued: May 8, 2018 Decided: May 13, 2021
Before NIEMEYER, MOTZ, and FLOYD, Circuit Judges.
Affirmed in part and vacated and remanded in part with instructions by published opinion. Judge Floyd wrote the opinion in which Judge Niemeyer and Judge Motz joined.
ARGUED: Adam Howard Charnes, KILPATRICK TOWNSEND & STOCKTON LLP, Winston-Salem, North Carolina, for Appellant. Kathleen Chewning Barnes, BARNES LAW FIRM, LLC, Hampton, South Carolina, for Appellees. ON BRIEF: Carmelo B. Sammataro, TURNER, PADGET, GRAHAM & LANEY, P.A., Columbia, South Carolina; Thurston H. Webb, KILPATRICK TOWNSEND & STOCKTON LLP, Winston-Salem, North Carolina, for Appellant. Ronnie L. Crosby, PETERS, MURDAUGH, PARKER, ELTZROTH & DETRICK, Hampton, South Carolina, for Appellees.
2 FLOYD, Circuit Judge:
This case stems from negligence, strict liability, and breach of warranty claims
filed under South Carolina law by John Wickersham’s estate and wife (collectively,
“Wickersham”) against Ford Motor Company, asserting that Wickersham’s Ford Escape
airbag system was defective and seeking various damages related to the accident and
Wickersham’s untimely death by suicide. Ford appeals the district court’s judgment
following a jury trial, arguing that the court erred (1) in admitting an expert’s opinion
testimony as to injury causation; (2) in applying an “uncontrollable impulse” exception to
the general rule that death by suicide breaks the causal chain in wrongful-death actions;
and (3) in declining to reduce the jury award based on the jury’s finding of Wickersham’s
comparative fault in causing his enhanced injuries. After certifying two questions of state
law to the Supreme Court of South Carolina, we now affirm in part and vacate and
remand in part with instructions.
I.
Wickersham was a pharmacist with a history of depression, bipolar disorder, and
suicidal thoughts. On February 3, 2011, during a rainstorm, Wickersham drove his 2010
Ford Escape through a T-intersection going roughly forty-two miles per hour, hit a ten-
inch curb, went “airborne for some portion of time, hit the ground,” J.A. 1553, and
crashed into a tree forty-five feet from the road. Wickersham suffered significant facial
injuries—which required multiple surgeries, including one to remove his left eye—and
the loss of his ability to smell or chew food.
3 After his accident, Wickersham had difficulty controlling his pain, despite many
visits to pain specialists, surgeons, and doctors. He also continued to suffer from
depression and was voluntarily hospitalized for severe depression and suicidal thoughts
on April 6, 2012. On June 6, 2012, Wickersham began receiving nerve treatments at an
Emory University pain clinic. But when his COBRA insurance expired, Wickersham
became concerned he would be unable to afford the out-of-pocket costs of treatment.
Because he could not be on pain medication while working as a pharmacist, Wickersham
struggled to maintain employment after his accident, causing his family a great deal of
financial hardship. On July 21, 2012—almost a year and a half after his accident—
Wickersham died by suicide after consuming a lethal dose of methadone.
Wickersham’s wife and estate filed separate actions against Ford in the South
Carolina Court of Common Pleas. Wickersham’s wife filed an action for loss of
consortium and Wickersham’s estate filed an action for wrongful death and survivorship.
Each action alleged three products-liability claims based on negligence, strict liability,
and breach of express warranty and the implied warranty of merchantability. The claims
asserted that the airbag system in Wickersham’s Ford Escape was defective, relying upon
the crashworthiness doctrine. That doctrine permits recovery for enhanced injuries
caused by a car company’s failure to design cars that account for the risks inherent to car
crashes. See Donze v. Gen. Motors, LLC, 800 S.E.2d 479, 480–81 (S.C. 2017). Ford
removed both cases to the United States District Court for the District of South Carolina
pursuant to diversity jurisdiction under 28 U.S.C. § 1332.
4 Ford moved for summary judgment, arguing in relevant part that the company was
not liable for Wickersham’s wrongful-death action because any defective design could
not be the proximate cause of Wickersham’s death by suicide under South Carolina law.
The district court denied Ford’s motion, holding that Wickersham could prevail on the
wrongful-death action if he proved that he suffered injuries due to Ford’s defective
design that gave rise to “an uncontrollable impulse”―an exception to the general rule
that death by suicide breaks the causal chain in wrongful-death actions. Ford orally
renewed its contentions at the close of Wickersham’s case-in-chief and again following
the close of Wickersham’s rebuttal case.
The parties proceeded to a two-week jury trial. At trial, Wickersham asserted that
the defective airbag caused his severe facial injuries, and that if the airbag had either not
deployed in this crash or not deployed so late, he would not have suffered these injuries.
Ford argued that Wickersham was out of position when the airbag deployed, and his
injuries were caused when his face impacted the gearshift lever. Dr. Judith Skoner, the
otolaryngologist and facial plastic surgeon who treated and performed surgery on
Wickersham after his accident, opined at her deposition and at trial that his injuries were
likely caused when the airbag impacted his face. Prior to trial and again after her
testimony, Ford moved to exclude Dr. Skoner’s expert opinion on the cause of
Wickersham’s injuries, which the district court denied.
5 The jury found in Wickersham’s favor as to all claims and awarded him $4.65
million in damages—including $2.75 million in damages related to Wickersham’s death. 1
The jury also found Wickersham was thirty percent at fault for his injuries but was
instructed by the district court not to reduce damages on this basis. The district court
entered judgment for Wickersham in accordance with the jury verdict. Ford submitted
typical post-trial motions, moving for a new trial, to alter or amend the judgment based
on the jury’s comparative fault finding, and for renewed judgment as a matter of law as to
the wrongful-death action.
Ford makes three arguments on appeal. First, Ford asserts that “[t]he district court
abused its discretion by permitting Dr. Skoner to opine on the cause of Wickersham’s
injuries.” Opening Br. at 35. Second, Ford argues that the court misapprehended South
Carolina law on proximate cause in wrongful-death cases involving death by suicide.
Ford believes this legal error caused the district court to both improperly deny its motion
1 This figure includes both $1.375 million in wrongful-death damages awarded to Wickersham’s estate and $1.375 million in post-death, loss-of-consortium damages awarded to Crystal Wickersham. Although the damages are split across the estate’s wrongful-death action and Crystal Wickersham’s loss-of-consortium action, both damages amounts stem from the jury’s finding that Ford was legally responsible for Wickersham’s death. The verdict form in this case asked the jury to determine whether “[Ford’s] wrongful conduct was a proximate cause of” Wickersham’s death. J.A. 366. The verdict form then asked the jury to award damages from Wickersham’s death to both the estate and Crystal Wickersham. And the district court entered two different judgments—one in favor of Wickersham’s estate and one in favor of Crystal Wickersham. Because the jury could only award post-death, loss-of-consortium damages if it found in favor of Wickersham on his wrongful-death action, those damages must also be vacated if the wrongful-death claim is unsuccessful.
6 for judgment as a matter of law and improperly instruct the jury, requiring a new trial on
this claim. Third, Ford appeals the district court’s denial of its Rule 59(e) motion to alter
or amend the judgment based on the jury’s finding that Wickersham was thirty percent at
fault for his injuries. Ford contends that South Carolina law permits comparative fault as
a defense in strict liability and breach of warranty claims under these facts.
To resolve Ford’s appeal, we certified two questions to the Supreme Court of
South Carolina, and the court’s answers provided us with guidance in deciding several of
these issues. Wickersham v. Ford Motor Co., 738 F. App’x 127 (4th Cir. 2018);
Wickersham v. Ford Motor Co., 853 S.E.2d 329 (S.C. 2020). Armed now with the
court’s responses, we address each of Ford’s arguments in turn.
II.
First, Ford argues that the district court abused its discretion in admitting Dr.
Skoner’s testimony that Ford’s defective airbag system caused Wickersham’s facial
injuries. Ford contends that under Federal Rule of Evidence 702, this testimony should
have been excluded because it was unreliable. In particular, Ford focuses on whether Dr.
Skoner used a reliable methodology to form her opinions. The district court concluded
that Dr. Skoner’s testimony “bears strong resemblance to a technique known as
‘differential diagnosis.’” J.A. 382; see also Westberry v. Gislaved Gummi AB, 178 F.3d
257, 262–63 (4th Cir. 1999) (describing differential diagnosis as “a standard scientific
technique of identifying the cause of a medical problem by eliminating the likely causes
until the most probable one is isolated” and “hold[ing] that a reliable differential
7 diagnosis provides a valid foundation for an expert opinion”). But Ford argues that Dr.
Skoner did not conduct a methodologically sound differential diagnosis and provided
little more than conjecture or “an educated guess” as to the cause of Wickersham’s
injuries. Opening Br. at 42. Ford believes it was substantially prejudiced by the
admission of this testimony because causation was essential to each of Wickersham’s
claims, jurors were likely to be swayed by Dr. Skoner’s role as an unpaid expert, and
Wickersham relied heavily on Dr. Skoner’s opinion in closing arguments.
“[A] court of appeals is to apply an abuse-of-discretion standard when it reviews a
trial court’s decision to admit or exclude expert testimony.” Kumho Tire Co. v.
Carmichael, 526 U.S. 137, 152 (1999) (cleaned up). Any abuse of discretion is reviewed
for harmless error, and a new trial is required only when the admission of evidence
affected the substantial rights of a party. See 28 U.S.C. § 2111; McDonough Power
Equip. v. Greenwood, 464 U.S. 548, 554 (1984) (noting that § 2111 imposes on appellate
courts “the same [harmless error] principle as that found in” Rule 61); Tire Eng’g &
Distrib., LLC v. Shandong Linglong Rubber Co., 682 F.3d 292, 315 (4th Cir. 2012) (per
curiam) (noting Rule 61 requires the error to be “prejudicial,” meaning it “affected the
outcome of the district court proceedings” (cleaned up)). An error is harmless when this
Court can “say with fair assurance, after pondering all that happened without stripping
the erroneous action from the whole, that the judgment was not substantially swayed by
the errors.” Taylor v. Va. Union Univ., 193 F.3d 219, 235 (4th Cir. 1999) (en banc)
8 (cleaned up), abrogated on other grounds by Desert Palace Inc. v. Costa, 539 U.S. 90
(2003).
Because the admission of Dr. Skoner’s expert opinion was harmless error at most,
we need not decide whether the district court erred in admitting it. See Daskarolis v.
Firestone Tire & Rubber Co., 651 F.2d 937, 942 (4th Cir. 1981) (treating harmlessness as
an alternative basis to affirm district court’s ruling). Wickersham submitted multiple, key
pieces of evidence related to his airbag theory of causation. Although Ford contends that
the jury would likely be swayed by Dr. Skoner’s role as Wickersham’s only unpaid
expert, two other experts testified that the airbag caused Wickersham’s injuries. Kelly
Kennett—an engineering consultant admitted as an expert in accident reconstruction and
biomechanical engineering—testified that Wickersham was struck with the airbag,
causing “facial fractures associated with that from being in the deployment zone of the
airbag.” J.A. 1088; see also J.A. 1163–66 (noting a lack of evidence consistent with a
gearshift strike). Dr. Sheldon Levin, who treated Wickersham for his pain and was
admitted as an expert in neuropsychology and clinical psychology, testified that in his
expert opinion, Wickersham’s chronic pain was caused by “the airbag exploding,
fracturing his face and causing damage to the nerves.” J.A. 949. Furthermore, the cross-
examination of Ford’s causation expert revealed inconsistencies between the medical
records and his theory that Wickersham’s injuries were caused when the left side of his
face struck the gearshift. For example, Ford’s expert testified that there was no evidence
in the medical records of injury to Wickersham’s right eye; but on cross-examination,
9 Ford’s expert testified that he had in fact reviewed medical records detailing injuries
Wickersham received to his right eye.
Wickersham also presented non-expert evidence that Wickersham’s injuries were
caused by the airbag. In addition to her expert testimony, Dr. Skoner testified that
Wickersham told her that he did not lose consciousness in the accident and that the airbag
struck his face. Dr. Skoner also testified that Wickersham received bilateral facial
injuries consistent with his bones being pushed backwards. Finally, Wickersham’s
daughter, son, wife, and sister all testified that Wickersham stated in the hospital that he
was struck by the airbag. Given the additional expert testimony and evidence that the
airbag caused Wickersham’s injuries, we have “fair assurance . . . that the judgment was
not substantially swayed” by admitting Dr. Skoner’s testimony. Taylor, 193 F.3d at 235
(cleaned up).
III.
Next, we address Ford’s argument that the district court did not apply the correct
proximate-cause rule to Wickersham’s wrongful-death action. Ford contends that
Wickersham’s death by suicide was an intervening act that rendered his death
unforeseeable as a matter of law. Ford therefore argues that this Court should reverse the
district court’s Rule 50(b) ruling as to Wickersham’s wrongful-death action.
Alternatively, Ford argues we should grant a new trial on the wrongful-death action given
the district court’s erroneous jury instructions. Finally, Ford asks for a new trial on all
remaining claims based on the prejudicial effect of evidence of Wickersham’s death by
10 suicide. We begin by examining South Carolina’s proximate-cause requirement before
taking each contention in turn.
A.
To prevail on his wrongful-death action, Wickersham must establish that
(1) Wickersham’s death (2) was caused (3) “by the act, neglect[,] or default of another.”
Fowler v. Woodward, 138 S.E.2d 42, 44 (S.C. 1964); accord S.C. Code Ann. § 15-51-10.
Wickersham’s wrongful-death action proceeded on three theories of products liability—
negligence, strict liability, and breach of warranty—each of which required him to
establish proximate cause. See Young v. Tide Craft, Inc., 242 S.E.2d 671, 675 (S.C.
1978) (wrongful-death action alleging negligence, breach of implied warranty, and strict
liability). “Proximate cause requires proof of: (1) causation-in-fact, and (2) legal cause.”
Baggerly v. CSX Transp., Inc., 635 S.E.2d 97, 101 (S.C. 2006) (citing Bramlette v.
Charter-Med.-Columbia, 393 S.E.2d 914, 916 (S.C. 1990)). To establish causation-in-
fact, plaintiffs must show that a defendant’s tortious conduct was the “but for” cause of
their injuries. Id. Legal cause requires demonstrating the injury’s foreseeability—that is,
that the injury was a “natural and probable consequence[] of the defendant’s act or
omission.” Id. Indeed, “[t]he touchstone of proximate cause in South Carolina is
foreseeability.” Koester v. Carolina Rental Ctr., Inc., 443 S.E.2d 392, 394 (S.C. 1994)
(citing Young, 242 S.E.2d at 675).
On appeal, Ford argues South Carolina law recognizes “[t]he traditional American
rule . . . that [death by] suicide breaks the chain of causation” because death by suicide is
11 generally presumed to be unforeseeable as a matter of law. Opening Br. at 17–18. Ford
argues that the district court erred in applying an exception to this rule, which permits a
jury to find proximate cause when a defendant’s tortious conduct creates an
“uncontrollable impulse” to end a plaintiff’s life. Importantly, Ford contends the court’s
application of this so-called exception eliminated foreseeability from its analysis.
Pursuant to Rule 244 of the South Carolina Appellate Court Rules, we certified the
following question to the Supreme Court of South Carolina to determine whether the
district court misapplied South Carolina’s proximate-cause requirements:
Does South Carolina recognize an “uncontrollable impulse” exception to the general rule that suicide breaks the causal chain for wrongful death claims? If so, what is the plaintiff required to prove is foreseeable to satisfy causation under this exception―any injury, the uncontrollable impulse, or the suicide?
Wickersham, 738 F. App’x at 129. In answering this certified question, the court
instructed that not only does South Carolina law not recognize an “uncontrollable
impulse” exception to the general rule, but also it does not apply the general rule that
death by suicide precludes foreseeability as a matter of law. Wickersham, 853 S.E.2d at
331–33. Instead, the Supreme Court of South Carolina understands its past precedent to
apply the state’s usual proximate-cause requirements to wrongful-death actions involving
death by suicide. Id. at 331; see also, e.g., Scott v. Greenville Pharmacy, 48 S.E.2d 324,
328 (S.C. 1948) (noting “it would be going entirely too far in this case” to find the death
by suicide foreseeable (emphasis added)), abrogated on other grounds by Nelson v.
Concrete Supply Co., 399 S.E.2d 783 (S.C. 1991). However, the court did announce one
12 notable difference from South Carolina’s usual foreseeability analysis. Typically, “the
plaintiff need not prove that the defendant should have contemplated the particular event
which occurred.” Baggerly, 635 S.E.2d at 101 (citing Whitlaw v. Kroger Co., 410 S.E.2d
251, 253 (S.C. 1991) (per curiam)). But, in cases involving wrongful death by suicide,
the death by suicide must be specifically foreseeable. Wickersham, 853 S.E.2d at 332–
33.
In summary, there is no presumption in South Carolina that a death by suicide is
unforeseeable as a matter of law. Accord Scott, 48 S.E.2d at 328 (“Each case must be
decided largely on the special facts belonging to it.”). But “[i]n cases involving wrongful
death from suicide, [South Carolina] courts have consistently decided legal cause as a
matter of law.” Wickersham, 853 S.E.2d at 332. Accordingly, the district court must first
decide whether Wickersham’s suicide was “unforeseeable as a matter of law.” Id. at 333.
If not, “the jury must consider foreseeability” as well as causation-in-fact. Id. 2
B.
1.
2 At first blush, the court’s guidance appears to import an “uncontrollable impulse” exception back into the court’s traditional proximate-cause analysis. However, we instead understand the court to hold simply that a defendant’s tortious conduct must be the but-for cause of a plaintiff’s death by suicide—a requirement that can (but need not be) established through an “uncontrollable impulse.” Because Wickersham’s theory at trial involved the existence of such an impulse, the court simply acknowledged that Wickersham could not prevail in this case without establishing its existence.
13 We now turn to Ford’s argument that we should reverse the district court’s denial
of its Rule 50(b) motion as to Wickersham’s wrongful-death action. “We review the
district court’s denial of a Rule 50(b) motion for judgment as a matter of law de novo”
and “view all the evidence in the light most favorable to the prevailing party” while
“draw[ing] all reasonable inferences” in their favor. Konkel v. Bob Evans Farms Inc.,
165 F.3d 275, 279 (4th Cir. 1999). The district court, in denying Ford’s motion,
incorporated its analysis originally denying Ford’s motion for summary judgment on
Wickersham’s wrongful-death action. 3 That analysis differs in crucial respects from the
proximate-cause framework that the Supreme Court of South Carolina announced. The
district court’s analysis first frames the question as whether Wickersham’s death by
suicide “precludes” recovery or instead “falls within a recognized exception to the
general rule.” J.A. 175–76. The court next concludes both that South Carolina
recognizes “the general rule . . . [or] default position that no proximate cause exists in
suicide cases,” and that state law incorporates an “‘uncontrollable impulse’ exception” to
that rule. J.A. 179. The court therefore asked “simply . . . whether [Wickersham] had the
ability to control his conduct, and if not, whether his uncontrollable impulse was
proximately caused by [Ford’s] negligence.” J.A. 185.
Importantly, the court expressly declined to apply the traditional proximate-cause
framework of causation-in-fact and foreseeability to this case. See J.A. 183 n.6. And
3 The district court independently analyzed the trial evidence to reject Ford’s contention that Wickersham did not prove the existence of an uncontrollable impulse. That issue is not on appeal and we need not discuss it further.
14 although the court stated that it would consider whether Ford’s conduct proximately
caused Wickersham’s uncontrollable impulse, South Carolina law requires an analysis of
whether Ford’s conduct proximately caused Wickersham’s death by suicide.
Wickersham, 853 S.E.2d at 332–33. Further, the district court does not appear to have
analyzed whether, as a question of law, Wickersham’s death by “suicide is a foreseeable
consequence of [Ford’s] tortious conduct,” Wickersham, 853 S.E.2d at 332, but instead
focused on whether Wickersham had presented evidence that Ford’s conduct factually
caused an uncontrollable impulse, see J.A. 190 (finding a “genuine issue of material fact
as to whether Wickersham’s [death by] suicide was caused by an uncontrollable
impulse”). Because the court rejected traditional proximate-cause principles and does not
appear to have explicitly analyzed the foreseeability of Wickersham’s death by suicide,
this Court cannot be certain that the district court’s analysis comports with South
Carolina law.
Ford urges this Court to apply the correct legal standard and direct judgment in its
favor. 4 Considering the unique procedural posture of this case, we believe the most
prudent course is to remand for the district court—familiar as it is with the facts and
4 Wickersham’s counsel asserts that Ford failed to raise below, and therefore waived, arguments that Wickersham’s death by suicide was not foreseeable. This Court has made clear that we can “consider any theory plainly encompassed by the submissions in the underlying litigation.” In re Under Seal, 749 F.3d 276, 288 (4th Cir. 2014) (quoting Volvo Constr. Equip. N. Am., Inc. v. CLM Equip. Co., 386 F.3d 581, 604 (4th Cir. 2004)). We see sufficient evidence throughout the record that Ford preserved this argument. See, e.g., J.A. 69–72 (arguing, on the facts of this case, that Wickersham’s death by suicide was not proximately caused by Ford’s conduct).
15 record—to reconsider its Rule 50(b) motion under the proper legal framework. See, e.g.,
Ross v. Commc’ns Satellite Corp., 759 F.2d 355, 364 (4th Cir. 1985) (noting “the sound
course is to reverse the summary judgment and remand to the district court for
reconsideration”), abrogated on other grounds by Price Waterhouse v. Hopkins, 490 U.S.
228 (1989).
2.
Ford also appeals the district court’s denial of its Rule 59(a) motion for a new trial.
We review the denial of a Rule 59(a) motion for a new trial for abuse of discretion.
Teague v. Bakker, 35 F.3d 978, 985 (4th Cir. 1994). Ford argues that it is entitled to a
new trial on Wickersham’s wrongful-death action because the court’s jury instructions
did not require the jury to find that Wickersham’s death by suicide was foreseeable.
We review the legal accuracy of jury instructions de novo. United States v.
Miltier, 882 F.3d 81, 89 (4th Cir. 2018). In doing so, we view the instructions “in their
totality,” Spell v. McDaniel, 824 F.2d 1380, 1397 (4th Cir. 1987), to decide if “the
instructions construed as a whole, and in light of the whole record, adequately informed
the jury of the controlling legal principles without misleading or confusing the jury,” id.
at 1395. We must consider the charge “holistically” rather than “pick at words, phrases,
and sentences” in the instructions. Noel v. Arston, 641 F.3d 580, 586 (4th Cir. 2011).
Erroneous jury instructions are also subject to harmlessness review. Volvo Trademark
Holding Aktiebolaget v. Clark Mach. Co., 510 F.3d 474, 485 (4th Cir. 2007). Thus, we
16 will not overturn the district court’s judgment based on instructional error unless “[t]here
is a reasonable probability that the erroneous instruction affected the jury’s verdict.”
BMG Rts. Mgmt. (US) LLC v. Cox Commc’ns, Inc., 881 F.3d 293, 305 (4th Cir. 2018)
In relevant part, the district court’s instructions first set forth the elements of
Wickersham’s strict liability, negligence, and breach of warranty claims and explained
that each claim “also require[s] proof of proximate cause.” J.A. 546. The district court
then gave a lengthy, general instruction on proximate cause. The court explained that
“[p]roximate cause requires proof of both causation in fact and legal cause,” or
foreseeability. J.A. 553. The court defined “[t]he test of foreseeability [as] whether some
injury to another is the natural and probable consequence of the complained of act . . . . in
the light of the attendant circumstances.” Id. Importantly, the Court instructed the jury
that “[t]he plaintiff must prove that some injury from the defendant’s conduct was
foreseeable, but does not have to prove that the particular injury that occurred was
foreseeable.” Id. (emphasis added). The parties agree that this instruction correctly states
general South Carolina principles of proximate cause.
The court then gave the jury a series of more specific instructions on proximate
cause, including an instruction titled “PROXIMATE CAUSE: SUICIDE.” J.A. 555.
This instruction adopted the “general rule” that “[death by] suicide will . . . break[] the
line of causation between the defendant’s actions and the person’s death.” J.A. 555. The
court then instructed the jury that “when a person’s [death by] suicide is the result of an
17 ‘uncontrollable impulse’ and the uncontrollable impulse was proximately caused by the
defendant’s actions, the defendant may be liable for the person’s [death by] suicide.”
J.A. 555–56 (emphasis added). This instruction next explained the conditions under
which a plaintiff can recover for a wrongful death by suicide but failed to mention
foreseeability, despite requiring a chain of factual causation: “[A] plaintiff may recover
for the wrongful death when the defendant’s actions made the person incapable of
controlling his or her own actions. . . . The crucial question is whether Mr. Wickersham
had the ability to control his actions.” J.A. 556 (emphasis added). This instruction
concluded by telling the jury that “[t]he ultimate question is whether Mr. Wickersham
had the ability to control his actions.” Id.
According to Ford, this instruction “permitted the jury to hold Ford liable for
Wickersham’s [death by] suicide without determining that the [death by] suicide was
reasonably foreseeable.” Opening Br. at 34. 5 Wickersham contends that this parses the
instructions too finely—instead, the district court correctly instructed the jury on
proximate cause and then merely explained that the jury must also find that Ford’s
5 Once again, Wickersham’s counsel suggests that Ford waived this instructional error by failing to properly object to the district court’s proposed jury instructions. Not so. See City of Richmond v. Madison Mgmt. Grp., Inc., 918 F.2d 438, 453 (4th Cir. 1990) (noting that so long as “the district court was fully aware of the plaintiff’s position, and the district court had obviously considered and rejected that position, strict enforcement of Rule 51 would exalt form over substance” (cleaned up)). In discussing the jury charge, Ford’s counsel incorporated by reference its objection that the district court misapplied South Carolina’s proximate-cause requirement—an objection noted and preserved by the district court. See J.A. 1685 (discussing objections at charge conference). Regardless, the Supreme Court of South Carolina has now clarified the proper law that should have governed this instruction.
18 conduct proximately caused an uncontrollable impulse. Reviewing the instructions as a
whole and in light of the Supreme Court of South Carolina’s guidance, we conclude that
the instructions fail to adequately capture the state’s foreseeability requirement in the
context of a wrongful death by suicide.
First, under South Carolina law, typical proximate-cause principles—requiring
both causation-in-fact and foreseeability—apply to wrongful death by suicide.
Wickersham, 853 S.E.2d at 333. The court’s instruction departed from these general
principles to provide a specific instruction focusing the jury’s attention on a general rule
that death by suicide breaks the causal chain and an exception to that rule, neither of
which exist. This, on its own, could “mislead[] or confus[e] the jury” by treating the
“uncontrollable impulse” exception as the legal crux of Wickersham’s wrongful-death
claim. See Spell, 824 F.2d at 1395. Second, although the district court stated that Ford’s
conduct must proximately cause an uncontrollable impulse, it provided a lengthy
explanation of when a jury could conclude this exception applies without mentioning
foreseeability. It then ends its instruction by focusing the jury on “[t]he ultimate question
[of] whether Mr. Wickersham had the ability to control his actions.” J.A. 556.
True, the district court’s general proximate-cause instruction was correct, and our
task is to determine whether “the instructions, taken as a whole, adequately state the
controlling law.” Teague, 35 F.3d at 985. But here, the interplay of the general and
specific proximate-cause instructions also contributed to the error. First, even if the
specific instruction could be read to require foreseeability, the South Carolina Supreme
19 Court requires that Wickersham’s death by suicide have been foreseeable to Ford.
Wickersham, 853 S.E.2d at 333. But the district court’s general proximate-cause
instruction only required the jury to conclude that “some injury from [Ford’s] conduct
was foreseeable.” J.A. 553. Second, the structure of the instructions creates the
impression that the specific instruction sets out an exception to general proximate-cause
requirements. After giving its general proximate-cause instruction, the court then framed
its specific instruction purely in terms of an “uncontrollable impulse” exception to a per
se rule that death by suicide breaks the causal chain. In this context, the jury could easily
have been misled to think that—for purposes of the wrongful-death action—it could
substitute a separate “uncontrollable impulse” analysis that lacked the typical components
of proximate cause. 6
Neither party addresses whether this instructional error was harmless. In our order
certifying questions of law to the Supreme Court of South Carolina, we indicated our
intent to vacate and remand on this claim if the district court’s instruction did not reflect
South Carolina law. Wickersham, 738 F. App’x at 131 (“Thus, if South Carolina does
not recognize the [“uncontrollable impulse”] exception, or does not recognize the
exception the way the district court applied it, we will vacate and remand the wrongful
death claim for reconsideration under the proper standard.”). The Supreme Court of
6 Wickersham also contends that “[t]he District Court instructed the jury at least three more times that it must find Ford’s conduct proximately caused Mr. Wickersham’s injuries, thus eliminating any deficiency” in the instructions. Resp. Br. at 26. These brief references to proximate cause did not clarify the conceptual confusion generated by the general and specific instructions discussed above.
20 South Carolina has now made clear that the district court’s jury instructions permitted the
jury to find Ford liable for wrongful death under a theory that does not exist in state law.
Accordingly, this error “seriously prejudiced the challenging party’s case.” King v.
McMillan, 594 F.3d 301, 311 (4th Cir. 2010) (quoting Rowland v. Am. Gen. Fin., Inc.,
340 F.3d 187, 191 (4th Cir. 2003)).
The district court’s instructions permitted the jury to find Ford liable without
determining the foreseeability of Wickersham’s death. But foreseeability is the
“touchstone” of proximate cause. Koester, 443 S.E.2d at 394. And the Supreme Court of
South Carolina has emphasized the difficulty of establishing foreseeability in wrongful-
death suits involving a death by suicide. See Wickersham, 853 S.E.2d at 332 (noting state
“courts have consistently decided legal cause as a matter of law”). Thus, the instruction
allowed the jury to find for Wickersham without considering the most crucial and
difficult-to-establish component of proximate cause. Accord Coll. Loan Corp. v. SLM
Corp., 396 F.3d 588, 600 (4th Cir. 2005) (finding prejudicial error when district court
imposed heightened standard of review).
Further, the case was effectively tried on the belief that Wickersham could
establish proximate cause if he proved the existence of an uncontrollable impulse.
Wickersham’s expert, Dr. Donna Schwartz Maddox, testified primarily that
Wickersham’s chronic pain from his accident left him unable to resist suicidal thoughts.
And based on the jury charge, Ford focused its closing arguments not on the
foreseeability of Wickersham’s death, but instead on the existence of an uncontrollable
21 impulse. A properly instructed jury could have found that Wickersham’s death was
unforeseeable to Ford, especially given the difficulty of establishing such a connection.
We hold that the improper instruction seriously prejudiced Ford, requiring vacatur
of the wrongful-death judgment. See Emergency One, Inc. v. Am. FireEagle, Ltd., 228
F.3d 531, 539 (4th Cir. 2000) (reversing judgment when “overbroad” instruction
permitted jury to find liability on a legally irrelevant basis); Rowland, 340 F.3d at 193–94
(finding prejudice when erroneous instruction significantly increased difficulty of
prevailing on claim compared to requested instruction, making it possible that the jury
would find for plaintiff). If the district court does not decide Wickersham’s wrongful-
death action as a matter of law under Rule 50(b), it must conduct a new trial on this
claim. 7
IV.
Lastly, we address Ford’s argument that the district court erred in denying its
motion to alter or amend the judgment under Rule 59(e) because the jury found that
Wickersham was thirty percent at fault for proximately causing his own injuries. See
Pac. Ins. v. Am. Nat’l Fire Ins., 148 F.3d 396, 403 (4th Cir. 1998) (noting Rule 59(e)
7 Ford also contends that evidence of Wickersham’s death by suicide would be inadmissible in relation to Wickersham’s remaining claims. Therefore, Ford argues that if this Court directs entry of judgment in its favor on Wickersham’s wrongful-death action, Ford is entitled to a new trial on Wickersham’s surviving claims. Because we remand to the district court for reconsideration of Ford’s Rule 50(b) motion, we do not reach this argument on appeal.
22 permits district courts to amend a judgment “to correct a clear error of law or prevent
manifest injustice”). The district court denied Ford’s motion, concluding that “the
Supreme Court of South Carolina would not recognize comparative fault as a defense to
strict liability or breach of warranty” claims in a crashworthiness case such as this one in
which the plaintiff’s negligence enhanced his injuries. J.A. 754.
“We review a district court’s decision on a motion to alter or amend the judgment
under Rule 59(e) for abuse of discretion.” Pac. Ins., 148 F.3d at 402. “[A] district court
abuses its discretion when it misapprehends or misapplies the applicable law.” Wicomico
Nursing Home v. Padilla, 910 F.3d 739, 750 (4th Cir. 2018) (cleaned up).
In order to determine whether the district court erred, we certified the following
question to the Supreme Court of South Carolina:
Does comparative negligence in causing enhanced injuries apply in a crashworthiness case when the plaintiff alleges claims of strict liability and breach of warranty and is seeking damages related only to the plaintiff’s enhanced injuries?
Wickersham, 738 F. App’x at 129. The Supreme Court of South Carolina initially framed
our certified question as “whether comparative negligence—which is normally thought of
as a defense—applies in a strict liability or breach of warranty case when the plaintiff’s
conduct (1) is not tortious conduct and is not misuse; and (2) relates only to the
enhancement of the injuries, not to the cause of the accident.” Wickersham, 853 S.E.2d at
333 (cleaned up). The court answered that question “no” but went on to explain that it
did not find the “defense” of comparative fault to be relevant in this case. Id. The court
next indicated its “concern[] that [its] ‘no’ answer to [this Court’s] second question may
23 lead to confusion on how to address causation of enhanced injuries in the crashworthiness
context.” Id. at 334. The court ultimately explained that a plaintiff’s actions in a
crashworthiness case that enhance injuries but are unrelated to the cause of the accident
might be the proximate cause of the plaintiff’s injuries and thus preclude liability. Id.
To the extent that the court’s answer to our certified question is ambiguous, our
review of South Carolina law also leads us to conclude that comparative negligence is not
a defense in this case. In Donze, the Supreme Court of South Carolina considered the
defense of comparative negligence in crashworthiness cases where the plaintiff’s
negligence contributed to the initial crash but not the enhanced injuries. 800 S.E.2d at
480–81. The court held that the defense did not apply based on two rationales. The court
first examined the principles of the crashworthiness doctrine—which compensates
vehicle occupants for enhanced injuries in car crashes. See id. at 481–84. Because
crashworthiness already presumes an accident, “the doctrine of crashworthiness itself
divides and allocates fault to a manufacturer for damages it alone caused.” Id. at 485.
And because plaintiffs’ negligence in causing an accident has no bearing on their
enhanced injuries, that negligence “is entirely irrelevant.” Id. Of course, this rationale is
inapplicable when a plaintiff’s fault contributes to the enhanced injuries at issue in a
crashworthiness case. Cf. id. at 488 (Kittredge, J., concurring) (“I would limit the
holding to true crashworthiness cases where it is established as a matter of law that the
plaintiff’s comparative fault was not a proximate cause of the ‘enhanced injuries.’”).
24 Ford emphasizes this rationale and correctly notes that some language in Donze
could be read to support a comparative fault defense on the facts of this case. See id. at
485 n.4 (majority opinion) (“Our ruling today is limited . . . . We note . . . that
comparative negligence related to the defective component itself . . . could still be a
defense, if a factual basis existed . . . .” (last alteration in original) (cleaned up)).
However, we understand the court to have merely declined to decide whether
comparative negligence in causing enhanced injuries applies to breach of warranty or
strict liability crashworthiness claims—a question not presented by that case. Nor does
this rationale require the application of comparative negligence when a plaintiff’s
conduct causes enhanced injuries. Instead, it merely makes clear that the defense is
inapplicable when a plaintiff’s conduct is legally remote from the harm being redressed.
Donze’s second rationale focuses on the nature of strict liability and breach-of-
warranty claims, which applies with equal force to this case. See id. at 485 (“Moreover,
to permit comparative negligence in crashworthiness actions brought under strict liability
and breach of warranty theories would conflate those two distinct doctrines with ordinary
negligence.”). “[B]oth strict liability and breach of warranty are statutory constructs as
are the available defenses to these causes of action.” Id. (emphasis added) (citing S.C.
Code Ann. §§ 15-73-10, 15-73-20, 36-2-314, 36-2-711). Indeed, “[s]trict liability in tort
was not recognized in South Carolina prior to enactment of 1974 Act. No. 1184,” which
adopted “a no-negligence concept of liability, [thereby] effect[ing] a profound change in
the law of [South Carolina].” Barnwell v. Barber-Colman Co., 393 S.E.2d 162, 163 (S.C.
25 1989) (per curiam). And the Supreme Court of South Carolina has made clear its
hesitancy to read unenumerated tort doctrines into its tort statutes. See id. (“[T]his Court
is compelled to interpret the laws of the General Assembly in their plain meaning [to
preclude punitive damages for strict liability] . . . .”); Donze, 800 S.E.2d at 485 (“If the
General Assembly intends for comparative negligence to constitute a defense under either
of these theories, it is unquestionably capable of amending these statutory schemes
accordingly.”). Finally, South Carolina courts analyzing the state’s prior contributory-
negligence defense held that this affirmative defense did not apply to various products-
liability actions sounding in strict liability or breach of warranty. See Wallace v. Owens-
Illinois, Inc., 389 S.E.2d 155, 157 (S.C. Ct. App. 1989) (“In South Carolina, contributory
negligence is an affirmative defense to an action for negligence [but not strict liability or
breach of warranty].”); Imperial Die Casting Co. v. Covil Insulation Co., 216 S.E.2d 532,
534 (S.C. 1975) (declining to apply the defense to a breach of warranty claim). 8 Thus,
South Carolina law generally does not recognize the affirmative defense of comparative
fault in strict liability or breach of warranty cases.
8 Ford correctly observes that South Carolina has since transitioned to a comparative-negligence framework. Nelson, 399 S.E.2d at 784. But both theories are grounded in the principle that it is appropriate—in assessing negligence—to compare the negligence of both parties. See Davenport v. Cotton Hope Plantation Horizontal Prop. Regime, 508 S.E.2d 565, 573 (S.C. 1998) (comparative negligence); Wallace, 389 S.E.2d at 157 (contributory negligence). Although South Carolina ultimately “determined comparative negligence is the more equitable doctrine,” Nelson, 399 S.E.2d at 784, Ford does not explain how the state’s adoption of comparative negligence renders the reasoning of Wallace or Imperial Die inapplicable.
26 But as Donze makes clear, the crashworthiness doctrine focuses on enhanced
injuries, so a plaintiff’s actions in causing those enhanced injuries might remain relevant
to the element of proximate cause. And South Carolina courts have consistently
maintained that regardless of whether defendants are entitled to an affirmative defense,
they are of course entitled to use evidence of plaintiffs’ fault in causing enhanced injuries
to defeat proximate cause. See Imperial Die Casting Co., 216 S.E.2d at 534 (“Under a
general denial a defendant may always introduce any evidence . . . tending to prove that
the misuse or abuse of the product was the proximate cause of the damages.”); Wallace,
389 S.E.2d at 157–58 (analyzing whether plaintiff’s action breaks the causal chain
despite rejecting affirmative defense of contributory negligence).
At bottom, we understand the Supreme Court of South Carolina’s answer to our
certified question of law as follows: comparative negligence is not an affirmative defense
to Ford’s strict liability or breach of warranty crashworthiness claims. But Ford can
argue, as always, that Wickersham’s conduct ruptured the causal chain required to
establish an essential element of his products-liability claims.
Accordingly, the district court did not err in declining to reduce the jury award by
thirty percent to reflect the jury’s finding that Wickersham was thirty percent at fault for
causing his enhanced injuries. Instead, Wickersham’s fault is relevant only insofar as it
eliminates proximate cause. See Matthews v. Porter, 124 S.E.2d 321, 325 (S.C. 1962)
(noting that there can be “proximate concurring cause[s]” of an injury without
eliminating the liability of the defendant). The jury found that Ford’s design defects were
27 proximately responsible for Wickersham’s injuries. Ford does not contend on appeal that
Wickersham’s own fault was sufficient to defeat that finding of proximate cause. We
decline to decide sua sponte whether Wickersham’s own fault completely severed that
causal connection.
Accordingly, we vacate the district court’s judgment as to Wickersham’s
wrongful-death action and resulting $2.75 million damages awards to Wickersham’s
estate and Crystal Wickersham. The district court should reconsider its ruling on Ford’s
Rule 50(b) motion. If it determines that Wickersham’s wrongful-death action does not
fail as a matter of law, that portion of the case must be retried. We affirm the district
court in all other respects. For the foregoing reasons, the judgment of the district court is
AFFIRMED IN PART AND VACATED AND REMANDED IN PART WITH INSTRUCTIONS.