please the court four dismissed that the district court should be reversed for summary separate reasons first the district court misunderstood south carolina law on proximate cause as it relates to circumstance when an injured person commits suicide second the district court improperly admitted the pinion testimony of the treating surgeon in violation of rule seven of two of our principals and finally the district court improperly rejected a thirty percent reduction in damages due to mr ricochet ems comparative fall in causing the enhanced injuries in this crash worthiness case i'd like to start with the proximate cause question and we would submit made a two mistakes here first the plaintiffs submitted no evidence of proximate cause as established by the south carolina courts and second in all of bent's the jury instructions improperly instructed the jury on proximate cause in the two related reasons first of all the evidence of suicide was we think irrelevant to the non wrongful death claims and any of that was unduly prejudicial in the context of those crimes i would say  observed just to the contrary you'll do a lot worse if you retry it and just have the injury claim product liability claims a crash where in this crime it's seems to me the jury made a separate must reasonably contemplate that suicide will follow that's a quote from an order for a proximate cause to be found and in that case remember that was a case four where recess over the course of a year or so gave gave somebody barbiturates that became it did they came to preston holt only committed suicide and the very importantly the scot said that all some suicides may result from the excessive use of drugs because the vast majority of people who take get addicted to these drugs do not commit suicide there was no no for see ability no proximate cause in that case and we think the principle of scott and proly apply directly in our situation plaintiff failed to establish that here there was no evidence in the record at all that for could reasonably contemplate that someone would commit suicide as a result of the defect in an airbag the car was invented one hundred thirty years ago there are literally hundreds of millions of cars that have been sold and operated in the united states and as far as we can tell and the plaintiffs didn't point to any cases challenging us as far as we can tell a car manufacturer has never been held responsible for suicide resulting from a d not only in a car airbag or any other part of the car as well so we think that shows that this is just simply not a forseeable result here the vast majority using the language of scott the vast majority of people who are injured in car accidents are defective cars with defective parts cars with defective airbags the vast majority do not commit suicide and scott says in that circumstance for c ability the proximate cause is not est the entire chain is forseeable and that's just not how proximate causes done either under scott and croly or under proximate cause principles in fact if you fall that line of analysis it would turn the presumption against suicide being the turkeys being held for suicide for that presumption on its head american law has always in this south carolina law has always held as a general rule that suicide breaks the chain of causation in the is not responsible for a suicide if plaintiffs argument work so that this court will be the first court to hold a product manufacturer of being sued in a product liability theory is liable for for a responsible for suicide as a result of the product defect in a product liability case before so this would be the first time that that happens and as a matter of law we think that means this was not forseeable i also know that the jury instructions plainly did not follow south carolina law just report and this is a page five fifty six of the joint pending instructed the jury quote put differently a plaintiff may recover for the wrongful death when the defendant's actions made the person reason that this the this report should be reversed in that we're entitled to a trial is that the court improperly admitted the opinion testimony on causation of the trial of mr rich shams treating surgeon dr and the fact of the matter is that her opinion about the cause of the acid it simply violated daubert principles we don't dispute the fact that she could testify about the injuries that he suffered that she saw and she could testify how she treated him that was fact testimony but she went on to testify that she believed in her medical opinion that his injuries were caused were caused by the airbag and let me ask you this  the airbag to discharge yes and it seems to me in the context of both parties the seized either hit the air back or under your theory miss the airbag or is pushed aside by the air prick who is leaning down hit the gear lever or something hard on that side and her opinion was based respectfully as we believe that line of analysis looks at the conclusions of her opinion were not the methodology isn't the truth by the time she got to her deposition as in every case like this they'll plentiful have his or her theory of what the cause was the defendant will have let me ask you this when we go back just a little bit more calm and then would she be capable of determining the direction of the force that broke the bones in his face when she said she did she  a in other words if she's able to say it was a direct racial as opposed to more side it seems to me the next step is just a logical conclusion she wouldn't have to say it was the airbag that's the only thing that could be put the correct well two things wrong first of all she conceded that there were other potential causes within the car that could have created the same injuries what were the dashboard for example and right off your back this it did but she never inquired whether he could have hit the desk when she requires and this court this report said well she conducted a differential diagnosis which is sort of i think what you're suggesting similar thing she had to exclude these possibilities before coming to her conclusion right it's not it's not enough afterwards to say i think it's i think it's the air bag which basically conceded was that she said it's consistent with the airbag because it's both sides of the space he told me was the airbag therefore i thought i think it's the airbag during that analysis she never considered any other cause  now she had done what you're are suggesting she did because she explained how the m roy was a ninety degree impact with their face i mean a direct on as opposed to the site because it hit the other side also that's right but she did not look at other  before i well we've been here for the record there are quite a few places where they talk about foreseeability in their arguments and i think it's better to leave i think it's pretty clear that they made this point repeatedly out under south carolina south carolina law it's just not that we have to specifically show ford new suicide what occur as a result of an airbag i know that in other words the whole notion about negligence tort is the foreseeability of injury and you don't have to address matters that are not foreseeable and i didn't think you'd be making event if suicide is foreseeable in this case then suicide is foreseeable every single motor vehicle accident because every motor vehicle accident results and pain results in conditions of permanent injury the first figure  so forth and everybody could argue every time a person commits suicide the manufactor snapple i don't follow that this is eighteen months after he suffered bipolar depression before the   part of the airbag defective airbag that it would cost suicide well first of all in iraq i don't think that's the correct standard but our secondary argument to that would be even if it is the standard foreseeability is is that you have to show that the defendant was aware that their conduct could cause some injury but not the particular injury that occurred and that their conduct was a direct cause but not necessarily the so cause of the injury that occurred and what ford wants to do is wipe out all of that and say in this particular context of suicide you have to show we knew the particular injury that occurred and we were the so and direct cause of that  matter of law applies unless the plaintiff shows you know controllable impulse exception and that standard or that law is actually in all of the things that form cites for the suppose a general rule that says suicides never recover both sections of the l r and the johnson versus wal mart stores case i don't want to say except if you have a case with these particular circumstances and that is this case there was that evidence in this case through the testimony of donna lives and that was not necessarily dispute about ford because they didn't put up their psychiatric experts so the controllable levels exception is essentially two parts you have to show that the plaintiff actually suffered from an uncontrollable  and that impulse was proximately caused by the defendant's conduct that's exactly what judge nor in charge the jury hear and that prop that general proximate cause law fits within that framework when the jury is determining whether the uncontrollable impulse was proximately caused by the defendant's conduct so it's not some new proximate cause standard that puts puts away all of the general law that we've all heard since law school it just fits within a particular cont the suicide situation which is essentially telling the jury how to prove causation continue from the accident through the suicide itself i think that is a really an excellent annunciation of your position if you have a case that holds i don't have a case that lays out exactly the way that i did your honor but i think that's got in crawley cases both actually support that in that the court didn't just say hey this was suicide you can never recover they went on to actually talk about the facts of the case and in the scott case the court noted it's generally impossible to say what would cause a suicide because there are so many factors that can go into it but in the very next sentence it says to do that the court would have to be able to eliminate all of these other factors that might also have caused the suicide and i would posit that that's the evidence and the theory we've put forth in this case through the deposition testimony that position but through the trial testimony o psychiatric expert she addressed all of the factors that for throughout her the attenuation of time the preexisting bipolar disorder the prior suicidal ideation we went through numerous pages of the transcript of all of his medical records from the time of the accident until the time of the suicide showing he really wasn't experiencing depression for quite a while that his bipolar disorder or whatever prior suicidal ideation he had had cleared up so much that she was able to say herman her opinion to a reasonable degree of medical certainty that the chronic pain from the airbag injuries is what led to the uncontrollable impulse to commit suicide you brought your complaints to a court right and it was removed yes that's correct so given all of that we think that also the there was evidence there even if you want to adopt this new foreseeability standard from ford which i don't think is support about south carolina law or the law in general  stated in south carolina law doesn't require it does require for utilities yes your honor we're not saying that we don't have to prove foreseeability in this case we're just saying as they've said it never clobbering they're arguing it's a heightened standard that it somehow foreseeable committed by a person who is already bipolar and already high ideations of suicide and didn't commit suicide for eighteen months afterwards and it seems to me  that all has to be foreseeable and and i didn't see you put any evidence on that you know on or two to respond you didn't ask them and whether they had ever had other accidents where they the people had committed suicide and it kind of accidents i did tried to keep on focus on the foreseeable deeper up to ward at the time that manufactured car and second point i would say as the first point of evidence is the owner's manual in the joint appendix that page eleven fifty nine i believe it says that ford is telling the owner in the owner's manual that an airbag has risk of death or serious injury so they knew that the airbag or a defect in the airbag or the going off of the airbag c standard is that we have to prove they should have foreseen the particular injury that occurred and in addition to the owner's manual i think there was testimony from experts proximate cause can we provide direct or circumstantial evidence that went testified about that as well as mr caruso and dr levin one of the pain doctors who treated mr wickersham said talked about the tragedy and all nerve and the face which the face is obviously the most commonly impacted part of the body with an airbag and said that pain is worse than anything you can imagine because it's close to the burning that it is common sense that chronic pain diminish his capacity in that he's treated numerous chronic pain patients who had airbag injuries and done a short magic's testified that fifty percent of that in the context of the fact that we don't have to proof or who knew suicide could occur as a result of this case and if if we had tried to to put forth evidence that they knew i think they would have objected they filed motions in limine in this case to prevent any testimony about their state of mind or knowledge and other similar incident from testimony so some of the things they're suggesting we should have done i would posit they would have strenuously objected to even weren't allowed to take  positions or were i get material from them about other prior incidents and to be honest your honor i was not involved in the discovery so i don't know exactly what happened i do know they took depositions and i think there was some evidence about other similar incidents but i'm not sure that it was geared specifically at the suicide as i said we believe the jury instruction adequately say that the law judge norton went to a lot of pains to go through and  craft the suicide jury charge and actually four didn't object to it he essentially said at one point counsel for ford said ok now we need to talk about the suicide instruction and the district court said i know your argument is suicide shouldn't come in but if it does this is ok and he said yes your honor you're right we object to suicide coming in at all but these charges are sufficient so i don't think that argument was made but even assuming it was i think the jury charge is correct in the sentence that they're pointing to is just another way of saying what judge norton already said it doesn't somehow eliminate the fact that we were required to prove proximate cause and the jury was required to find it on the verdict form specifically instructed them on that they got a general proximate cause charge and they got the suicide charge which laid out the general framework i discussed and then explain to the jury here the things you can consider and determining whether there was none controllable and with that because i understand the proposition that comparative negligence and the cause of the acts is irrelevant to the crash work but in this case the jury found that he was compar thirty percent at fault in the use of the device right which now seems to me he should there is a thirty percent loss on that that's just a matter of logic you have compared negligence what why why shouldn't that apply in this circumstance where the jury explicitly found that it's not related to the cause of the accident but to the cause of the actual interest if it does apply only to the negligence action so we're not saying that that is a completely irrelevant irrelevant defense or it can be made earth that there can be no evidence or let me ask you about that too it seems to me a vast majority and it's even getting more treats product liability as a separate area they have not compartmentalise strict liability and product liability in contractual aspects and tort aspects they call it product liability and comparative negligence in those cases these other states have all said that quote comparative negligence related to the defective component itself turning a door shut for example could still be a defense if a factual basis existed and so your argument is that because they were dealing only with negligence that you still have the exception for strict liability but that still doesn't follow from the defective door the hypothetical i mean it could be anyway i understand your argument it's it's it's perfectly fine art and it's just to me i've read that signal is a little different because of the whole comparative negligence assumption and the distinction they're making money crashworthiness and the costs of the accident and they follow the court fol before this court and i completely understand the factual distinction that you're making and we've never denied argued against that factual distinction i mean really the facts in this case sort of i'm going to take it out of the crashworthiness context because you're not separating of the jury answered the question the jury basically said the product he was comparatively correctly gente use of the product correct so i don't quite know what that means i guess he was probably they probably concluded he was leaning it looks to me like south carolina and tend to adopt the crashworthiness doctrine when with two thousand and twelve whatever they have to hop to that and follow the national trend in that area and everybody nationally i think is s so we recognize that doctrine for a very long time and i think there's good evidence in donte that our supreme court is saying we still recognize the distinction between negligence strict liability and breach of warranty because it says that strict liability and breach of warranty are statutory causes of action as are the defenses to them and i'm going through talking about what all these other states have done with crashworthiness they point out that there is no south carolina statute  comparative negligence in a crash worthiness case applies and says well these are statutory causes of action our legislature hasn't seen fit to say that comparative negligence applies to these theories if they wanted to do so they could do it implying that that hasn't been done and that that defense doesn't apply to those theories unless and until the general assembly does that and then they even go on to point out that applying comparative negligence to strict liability in breach of warranty would com at the users negligence but not be able to look at the defendant's negligence so i think those principles that are stated in in donzy are directly applicable to the question that we have in this case and really i think judge norton was correct to say that the supreme court were presented with this issue that's what they would find based on those principles and i see my time is up i didn't get to address anything about them dr scanner so if you don't have any questions for me about that or  thank you are starting with the proximate cause question we think scott does set up a specific requirement that the suicide be foreseeable and if you look at scoring from the opinion page  three twenty eight of the regional reporter the court says while it may be true that some suicides may result from the excessive use of drugs such as barbiturates yet has a vast majority of people who use  of drug do not commit suicide it could not be said that he who sells the drug may reason may reasonably contemplate that suicide will fall that he was sells the drug may reasonably contemplate that suicide and there is no evidence in this record judge niemeyer as you pointed out from any plaintiff's experts that four could reasonably anticipate that suicide would follow and if it's enough to show that serious injuries would result in suicide is always foreseeable in any product defect case hit the arm and it and chatters and usually here there's an intervening act right the suicide is a separate intervening act by the injured party and american law has predict a common law it was an automatic rule of course standing alongside the fragile plaintiff the actual plaintiff principle was a common law rule that suicide growth chain of causation and you could not recover for the injuries resulting from the suicide and american lot in the last a few decades has softened that  that up a bit but still in south carolina we haven't challenged the sun appeal of even if there is an irresistible impulse concept that allows you theoretically to recover from suicide the irresistible impulse itself impact on the brain manufacture pharmaceutical manufacturers know this and study it and the second is products that are designed specifically to prevent suicide so windows are designed in psychiatric hospitals to make sure they cannot be opened or broken state law well it's a question of state law and i think the reason that we don't find he went to federal court well the but well it's diversity case your honor did i didn't say you didn't have the need to go to federal court but i'm not sure that there's i'm not the reason there are new cases rejecting this is because plaintiffs are bringing it because of the strength of the presumption in american law that suicide is not recoverable i want to make two points about don's first before my time runs out the first is strengthens the tension that's created a footnote for the conflicting statements relayed above when they talk about defenses that tory defenses that they're statutorily created and therefore we have to rely on i would think there would be a a pretty clear statement south carolina law but then you have that those dicta in the main text relating to strict liability statutory well i agree with you that the opinion could be a little bit clearer in places it's the what the court is saying but i think one thing is clear is the work was not distinguishing between strict liability average warranty claims on one hand and negligence claims and on the other hand the four footnote for the court said  between these theories of liability when utilized in conjunction with the crossword than is doctrine and then it went and then it continues on in the end of that paragraph is footnote four so i think if you read it in context what the court is saying is that it's not making a distinction between the