PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

DONNA VAUGHN,
Plaintiff-Appellant,

v.
                                                                  No. 95-1086
NISSAN MOTOR CORPORATION IN
U.S.A., INC.,
Defendant-Appellee.

Appeal from the United States District Court
for the District of South Carolina, at Beaufort.
Cameron McGowan Currie, District Judge.
(CA-92-1764)

Argued: December 8, 1995

Decided: March 5, 1996

Before RUSSELL and HALL, Circuit Judges, and THORNBURG,
United States District Judge for the Western District
of North Carolina, sitting by designation.

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Vacated and remanded by published opinion. Judge Hall wrote the
opinion, in which Judge Russell and Judge Thornburg joined.

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COUNSEL

ARGUED: James B. Richardson, Jr., SVALINA, RICHARDSON &
SMITH, Columbia, South Carolina, for Appellant. Joel Haywood
Smith, NELSON, MULLINS, RILEY & SCARBOROUGH, L.L.P.,
Columbia, South Carolina, for Appellee. ON BRIEF: Samuel L.
Svalina, SVALINA, RICHARDSON & SMITH, Columbia, South
Carolina, for Appellant. Stephen G. Morrison, NELSON, MULLINS,
RILEY & SCARBOROUGH, L.L.P., Columbia, South Carolina, for
Appellee.

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OPINION

HALL, Circuit Judge:

In this products liability suit, Donna Vaughn appeals a judgment
entered on a jury verdict in favor of defendant Nissan Motor Corpora-
tion in U.S.A. (Nissan). Because a jury instruction on a key issue was
erroneous, and we cannot say that the error was harmless, we vacate
the judgment and remand for a new trial.

I.

This suit was filed in state court in Beaufort County, South Caro-
lina. It was removed to district court by Nissan; jurisdiction rests on
diversity of citizenship.

Here are the facts as presented at the jury trial. On May 5, 1991,
Donna Vaughn was driving her 1989 Nissan Pulsar on Interstate 95
in Colleton County, South Carolina. The voltage regulator failed,
which in turn caused excessive current, which in turn caused the bat-
tery fluid to boil.

According to Vaughn, toxic fumes (chiefly various compounds of
sulfur) entered the passenger compartment through the car's ventila-
tion system. She inhaled these fumes, and, as a result, now suffers
from vocal chord dysfunction and reactive airway dysfunction syn-
drome (RADS), a severe form of asthma.

Two experts testified for Vaughn that the voltage regulator was of
inferior design and contained construction defects that caused the
malfunction. Nissan did not directly challenge this testimony. Its
expert attempted to show that the regulator's failure did not create a
condition unreasonably dangerous to an ordinary consumer. He con-

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ducted a road test experiment that purportedly duplicated the incident.
He concluded from his experiment that the fumes, though toxic at
their point of release, did not enter the passenger compartment in
harmful concentrations, and that the overheating occurred slowly
enough to give the driver ample warning of a problem and hence
ample opportunity to flee the vehicle. On the other hand, the test driv-
er's eyes became irritated, he coughed, and he smelled a "rotten egg"
odor. Moreover, at the very same time the driver experienced this dis-
comfort, Nissan's test meter detected no hydrogen sulfide.

The wrecker driver who came to the scene of Vaughn's mishap tes-
tified that a foul odor was obvious at a distance of five to ten feet
from the car, and he held his breath while inside the car to release the
brake for towing. Even the next day, when he was trying to start the
car, the same witness found the fumes to be "extremely strong," caus-
ing his eyes to burn and water.

Four physicians, including Vaughn's treating physician, testified
that she had developed RADS as a direct result of inhaling the sulfur-
laden fumes. On the other hand, the district court refused to permit
these physicians to testify that Vaughn's alleged vocal chord dysfunc-
tion was also caused by the incident. According to the court, this prof-
fered testimony was not sufficiently grounded in scientific knowledge
to be admissible under the test announced in Daubert v. Merrill Dow
Pharmaceuticals, Inc., 113 S.Ct. 2786 (1993).

Nissan presented evidence that Vaughn suffers from somatization
disorder, which dates from abuse she experienced as a very small
child. A person with somatization disorder exhibits illnesses that have
no apparent physiological cause. Nissan's experts testified that
Vaughn does not have RADS, but does have vocal chord dysfunction
(which mimics and is often misdiagnosed as asthma). Finally, while
vocal chord dysfunction has no known physiological cause, a Nissan
expert testified that it is consistent with somatization disorder.1
_________________________________________________________________
1 This particular opinion was something of a tautology, inasmuch as
every physical complaint that lacks a known physiological cause is "con-
sistent" with a disorder that is characterized by the exhibition of illnesses
with no known physiological cause.

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The district court denied Vaughn's motion for a partial directed
verdict, and gave a key instruction to which she excepted. The jury
returned a verdict for Nissan. Vaughn's motion for a new trial was
denied, and she appeals.

II.

This action is based on S.C. Code Ann. § 15-73-10,2 which adopts
the formula of Restatement (Second) of Torts § 402A for imposing
strict liability on the seller of a defective product.3 Not every "defect,"
as the term is commonly used, subjects a seller to strict liability. The
"defect" must cause the product to be unreasonably dangerous. A car
with a bad radio is not unreasonably dangerous; a car with bad brakes
may be. Moreover, whether the defect causes the product to be "un-
reasonably dangerous" is measured by the "ordinary consumer" for
whom the product is designed. Id., comment i.4 A circular saw would
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2 Vaughn also alleged a claim for breach of warranty, which, in this
context, has the same elements as her strict liability claim. See, Bragg v.
Hi-Ranger, Inc., 462 S.E.2d 321, 326 (S.C.App. 1995) (listing essential
elements of "any products liability theory"). Consequently, no separate
discussion of Vaughn's warranty claim is necessary.
3 The statute reads:

          § 15-73-10. Liability of seller for defective product.

          (1) One who sells any product in a defective condition
          unreasonably dangerous to the user or consumer or to his prop-
          erty is subject to liability for physical harm caused to the ulti-
          mate user or consumer, or to his property, if

          (a) The seller is engaged in the business of selling such
          a product, and

          (b) It is expected to and does reach the user or consumer
          without substantial change in the condition in which it is
          sold.

          (2) The rule stated in subsection (1) shall apply although

          (a) The seller has exercised all possible care in the prep-
          aration and sale of his product, and

           (b) The user or consumer has not bought the product
           from or entered into any contractual relation with the seller.
4 The comments to § 402A of the Restatement were explicitly adopted
as the legislative intent of its South Carolina analogue. S.C. Code Ann.
§ 15-73-30.

                    4
be quite dangerous if used by a blind man, but a properly designed
and manufactured saw is safe and useful to an ordinary person. Con-
sequently, circular saws are not per se defective, notwithstanding a
fingerless blind man here and there.

On the other hand, if the saw is unreasonably dangerous to an ordi-
nary consumer -- e.g., the blade flies off because of a manufacturing
defect -- recovery is not restricted to "ordinary consumers" alone. See
Purvis v. Consolidated Energy Products Co., 674 F.2d 217, 222 (4th
Cir. 1982) (applying S.C. law) (commercial entity may maintain a
strict liability action, because "[i]t is the nature of the risk that caused
injury, rather than the nature of the parties, which is finally determi-
native"); Salt River Project Agr. Imp. and Power Dist. v. Westing-
house Electric Corp., 143 Ariz. 368, 694 P.2d 198, 211 (1984)
(same); Todd v. Societe Bic, S.A., 21 F.3d 1402 (7th Cir.) (en banc)
(in action arising from death of child, the product, rather than the
plaintiff, was subjected to the "ordinary consumer" test), cert. denied,
115 S.Ct. 359 (1994).

This principle is analogous to the "thin skull" rule of negligence
law. The tortfeasor's duty of care is measured by the ordinary person,5
but the plaintiff's injuries may not be. In short, if Nissan breached its
objective duty of care, it must take its victim as it finds her.

We do not mean to say that a plaintiff's extraordinary quality --
whether infancy, insanity, allergy, or commercial sophistication --
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5 In the products liability context, even that manufacturer whose prod-
uct is safe for the "ordinary consumer" is not necessarily off the liability
hook. Where the manufacturer is or should be aware that an appreciable
number of consumers are unusually susceptible to injury from his prod-
uct -- allergies are the classic example -- a duty to warn those consum-
ers may arise. Restatement, § 402, comment j. See, e.g., Brown v.
McDonald's Corp., 101 Ohio App.3d 294, 655 N.E.2d 440, 443-444
(1995); Advance Chemical Co. v. Harter, 478 So.2d 444, 447-448
(Fla.Dist.Ct.App. 1985). See generally, Annot., "Products Liability:
Strict Liability in Tort Where Injury Results from Allergenic (Side-
Effect) Reaction to Product," 53 A.L.R.3d 298 (1973 & Supp. 1994);
annot., "Seller's or Manufacturer's Liability for Injuries as Affected by
Buyer's or User's Allergy or Unusual Susceptibility to Injury from Arti-
cle," 26 A.L.R.2d 963 (1952, 1981 (Later Case Service), & Supp. 1994).

                      5
has no role in the ultimate decision on liability. It certainly may,
although its relevance is to questions such as proximate or intervening
cause, or contributory or third-party negligence. It has no place in the
purely objective determination of whether the product itself is unrea-
sonably dangerous to an ordinary consumer. In a case similar to this
one, the en banc Supreme Court of Washington had these observa-
tions:

          [Plaintiff] presented evidence that exposure to certain con-
          centrations of formaldehyde is harmful to persons. Her doc-
          tors, moreover, unequivocally testified that she was harmed
          by the gas. The defense medical experts did not refute this
          evidence and in fact agreed a substantial portion of the pop-
          ulation may suffer some reaction to formaldehyde. Rather,
          the defense experts testified [that plaintiff's] asthma was
          genetically, rather than chemically induced. This evidence
          goes to causation, however, not to whether the [product]
          was fit for the foreseeable "ordinary" consumer.

Tiderman v. Fleetwood Homes of Washington, 102 Wash.2d 334, 684
P.2d 1302, 1304-1305 (1984).

At the charge conference, the district court stated its belief that
even if Vaughn's Nissan were in a defective condition unreasonably
dangerous to an ordinary consumer, Vaughn could only recover if she
too were an "ordinary consumer." Nissan had not requested such a
jury charge, and Vaughn objected to it. Nonetheless, the erroneous
instruction was given.6
_________________________________________________________________
6 With the portion to which Vaughn objected emphasized, the instruc-
tion read:

          [I]f you find that she has asthma, then you must consider
          whether her asthma was proximately caused by inhalation of
          toxic fumes from the battery of the Nissan Pulsar. If you find
          that the battery, the alternator/regulator, excuse me, was in a
          defective condition unreasonably dangerous to the ordinary con-
          sumer, and if you find that Donna Vaughn was an ordinary
          consumer, and if you find that she was injured as a result of that
          accident, and if you find that her injury was asthma, then you

                    6
Nissan took full advantage of the error in final argument, empha-
sizing that Vaughn has severe psychological problems and that those
problems bar recovery. (E.g., "Have they proved that she is not psy-
chologically ill, that she is an ordinary person?") Counsel for Nissan
listed the spurious "element" on a blackboard in an apparent effort to
impress it in the jurors' minds.

This faulty instruction requires reversal. It could very, very easily
explain the verdict, because the evidence on this point was perhaps
the most clear-cut in Nissan's favor of any issue that went to the jury.
Vaughn concedes that she has a history of psychiatric illness from
which she has never completely recovered.

Nissan virtually admits that the instruction is erroneous. It lamely
points out that "ordinary consumer" was used several other times in
the instructions without objection, to which Vaughn aptly replies that
the term was not objectionable elsewhere. Moreover, these correct
usages did not cure or dissipate the harm of the erroneous instruction.7
We must therefore grant a new trial.
_________________________________________________________________

          would have determined that her asthma was proximately caused
          by the inhalation of toxic fumes.

As we stated above, the plaintiff's extraordinary quality or qualities
can come into play on a causation issue, and this instruction does gener-
ally cover proximate causation. However, it errs because it requires the
jury to find for Nissan simply because Vaughn has an unusual quality,
rather than because the unusual quality, instead of the product defect,
was the proximate cause of the injury.

7 Jury instructions are a human endeavor, so we cannot demand that
they be perfect. Hence, we do not parse a jury charge sentence-by-
sentence in search of inartful language or trivial ambiguity, and we
ignore such minor irregularities where the charge as a whole adequately
and accurately states the law. Here, the error is patent, its expression is
clear, and language even arguably mitigating it is absent. The charge as
a whole thus contained the error as starkly as did the faulty single
instruction.

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III.

Vaughn also challenges two rulings made in the course of trial: (i)
the district court's exclusion of her experts' testimony that exposure
to the fumes caused her vocal chord dysfunction, under the standard
announced in Daubert, 113 S.Ct. at 2797; and (ii) the denial of her
request for a partial directed verdict on the "defect" issue. Inasmuch
as a new trial is required, and these issues may then arise on a much
different record, if they arise at all, we decline to render an advisory
opinion on them.

The judgment of the district court is vacated, and the case is
remanded for a new trial.

VACATED AND REMANDED

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