Tort/Negligence – Products Liability – Frivolous Civil Proceedings Sanctions Act – Affidavits – Engineers – First Impression

Oakman v. Lincare Inc. (Lawyers Weekly No. 002-111-13, 12 pp.) (J. Michelle Childs, J.) 1:13-cv-00428; D.S.C.

Holding: Plaintiffs were not required to contemporaneously file an expert affidavit with their complaint under South Carolina’s Frivolous Civil Proceedings Sanctions Act because the suit was brought against a corporate entity and not an individual professional engineer.

Motion to dismiss denied.

Plaintiffs’ decedent obtained a prescription oxygen concentrator machine from defendants. The machine caught fire at decedent’s residence while he was asleep and breathing through a cannula supplied by defendants. Decedent inhaled fire into his throat, lungs, and stomach and died as a result of the fire. His estate brought products liability, strict liability, negligence and breach of warranty claims against defendants, alleging losses from incurred medical bills, lost future earning potential and loss of consortium.

South Carolina state and federal courts have enforced the contemporaneous filing requirement of the FCPSA in cases in which the professional alleged to have been negligent was a named defendant and in cases alleging professional negligence against the employees of a licensed health care facility in which the health care facility and/or the professionals themselves were named defendants. However, the question of whether the contemporaneous filing requirement applies in actions against corporations (i.e., non-health care facilities) for the defective design of products by professional engineers employed by those corporations is one of first impression in South Carolina. Thus, the court must interpret the language of the statute and apply it to the facts of this case.

Statutes like the FCPSA that limit a plaintiff’s right to bring a suit are in derogation of the common law and should not be extended beyond the clear intent of the legislature. The article “a” and the singular noun “professional” in the second clause of the statute clearly and unambiguously demonstrate that the General Assembly intended to apply this filing requirement only to actions brought against individual persons—not to actions brought against the corporations or other business entities by which these individuals are employed—unless those actions are brought against licensed health care facilities. The exception for health care facilities further supports the court’s interpretation of the General Assembly’s intent. To hold otherwise, the court would not be giving effect to all words and clauses of the statute. Had the General Assembly intended for the FCPSA to apply to actions brought against any corporation or business entity, the exception would be insignificant and wholly superfluous.

No affidavit is necessary for the plaintiff’s cause of action. Motion to dismiss denied.