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Whitfield Bryson & Mason

Supreme Fourth Circuit: WBM Appeal Heard by Sandra Day O'Connor

By Scott C. Harris | 

On March 22, 2012, I had the honor of appearing before the 4th Circuit Court of Appeals in Greenville, South Carolina regarding an appeal of a product liability case, Farrar & Farrar Dairy, Inc. et al v. Miller-St. Nazianz. The judicial panel consisted of Chief Judge William Traxler, Senior Judge Clyde Hamilton, and Retired Justice Sandra Day O’Connor sitting by designation. Needless to say, it was an incredible experience to have the opportunity to appear before Justice O’Connor, and one that I will not forget.

Whitfield Bryson & Mason represents a farmer who had been provided with defective silage bags (bags that are used to store feed for livestock). The silage bags which were sold to our client by Miller-St. Nanzianz (“Miller”) were manufactured by a third company Hyplast-NV through a reverse engineering process. At summary judgment, the District Court dismissed our claims of negligence, breach of implied warranty and breach of express warranty because an expert had not performed any testing on the silage bags to determine that they were defective, and, since Miller supplied replacement silage bags, our clients’ claims were dismissed.

However, on appeal, we asserted that the District Court overlooked two significant facts: (1) Miller’s corporate representative admitted that the bags supplied to our client were defective (based upon his admission, we felt we did not need an expert to discern the specific defect in the silage bag); (2) the corporate representative also admitted that some of the replacement bags were problematic. Accordingly, Miller’s warranty failed of its essential purpose. Our client should have been entitled to seek additional consequential damages because he was provided with admittedly defective replacement bags pursuant to the warranty.

While it is always an honor to appear before the 4th Circuit, it was a special honor to appear before a retired supreme court justice. While Justice O’Connor did not ask any specific questions about the case other than to request that I speak louder, the questions I received from the remaining judges dealt with whether the corporate representative had adequate knowledge that the silage bags were defective. While I argued that his statement bound the company, Miller’s counsel argued that their corporate representative did not have the requisite expertise to determine that the silage bags were defective. Miller’s counsel also argued that by accepting the replacement silage bags, our client was precluded from seeking consequential damages. Regardless of the outcome (which will be filed in approximately two months), it was an incredible experience to appear and argue before Justice O’Connor.