On September 1, 2021, the South Carolina Court of Appeals affirmed the circuit court’s verdict and additur in favor of Plaintiffs in the matter of Beverly Dale Jolly and Brenda Rice Jolly v. Gen. Elec. Co., et al. Fisher Controls International, LLC (“Fisher”) and Crosby Valve, LLC (“Crosby”) (collectively referred to herein as “Appellants”) subsequently petitioned the Supreme Court of South Carolina for a writ of certiorari. The Supreme Court has now granted certiorari with respect to certain issues presented in the Jolly opinion, the forthcoming opinion of which will continue to present future implications for asbestos litigation in South Carolina.
Plaintiffs filed the aforementioned action on April 5, 2016, against sixty-three (63) defendants, two of which were Fisher Controls International, LLC (“Fisher”) and Crosby Valve, LLC (“Crosby”). Plaintiffs asserted claims for negligence, strict liability, breach of implied warranty, fraudulent misrepresentation, and loss of consortium based on Mr. Jolly’s alleged exposure to asbestos while employed as a mechanical inspector by Duke Power Company (“Duke”), during which Mr. Jolly worked around other tradesmen tearing out asbestos insulation and gaskets, at the Oconee, McGuire, and Catawba Nuclear Stations in addition to other facilities. Fisher manufactures and sells process control valves used in industrial facilities, including nuclear power plants like Oconee, McGuire, and Catawba while Crosby manufactured safety-related valves for industrial facilities, including but not limited to nuclear power plants. Plaintiffs ultimately received jury verdicts of $200,000 in actual damages to Jolly and $100,000 to his wife. The circuit court allowed the couple to request a new trial and ultimately increased their award to $1.6 million and $290,000, respectively. Fisher and Crosby subsequently appealed, seeking review of the circuit court’s denial of their motions for a directed verdict and a judgment notwithstanding the verdict, its granting of a new trial nisi additur, and its partial denial of Appellant’s motion for setoff, among other things. The South Carolina Court of Appeal affirmed the circuit court in its entirety, their reasoning for which is discussed in detail below.
The court of appeals initially addressed Appellants’ contention that there was no reliable evidence to demonstrate that Mr. Jolly’s exposure to their valves was a “substantial factor” in causing mesothelioma. Under South Carolina law, to support a reasonable inference of substantial factor causation in an asbestos case, “there must be evidence of exposure to a specific product on a regular basis over some extended period of time in proximity to where the plaintiff actually worked.” Appellants argued that Plaintiffs’ expert witnesses failed to satisfy, and in fact, conflicted with, this legal causation standard by opining that “every exposure,” rather than analyze the various exposures which were substantial, to asbestos at levels “above background” was substantially causative of Mr. Jolly’s development of mesothelioma. The court of appeals ultimately found that the testimony of Plaintiffs’ expert did not espouse the “each and every exposure” theory, which it acknowledged was inadmissible, but instead represented a “cumulative dose” theory. Appellants argued such was artificial and incompatible with the substantial factor standard required for causation. The court of appeals nevertheless held that cumulative dose testimony was permissible as “helpful background information essential for the jury’s understanding of medical causation[,]” further emphasizing that South Carolina allows for “multiple substantial causes” that “may combine and cooperate to produce the resulting harm to the plaintiff.”
The court of appeals, in a footnote, also suggested that a plaintiff’s evidentiary burden may be lower in mesothelioma cases than in asbestosis cases, noting that “the present case does not concern asbestosis, which, according to Dr. Frank [Plaintiffs’ expert witness] requires higher exposure levels than the exposure levels that can cause mesothelioma. Therefore, the facts in Lohrmann do not lend themselves to a valid comparison with the facts in the present case.” Defendants contend that the Supreme Court of South Carolina has never held, or even suggested, the standard differs depending on the asbestos-related disease at issue, South Carolina courts should not adopt a lower standard in mesothelioma cases, and such a suggestion by the court of appeals will result in confusion and error if this Court does not grant certiorari and clarify such.
The court of appeals also rejected Appellants’ arguments that the Plaintiffs failed to meet their burden of proof on their failure-to-warn claims because (a) Appellants were protected by the sophisticated intermediary doctrine; and (b) the dangers of asbestos gaskets was open and obvious. Under the sophisticated intermediary doctrine, a manufacturer of a product has no duty to warn of dangers inherent in a product if the product is distributed to a learned intermediary or sophisticated user. The court affirmed the circuit court’s conclusion that Duke was not a sophisticated intermediary in light of testimony that while aware of the hazards associated with asbestos insulation, it believed asbestos gaskets to be harmless at the time. Along the same lines, Defendants further contend that Plaintiffs failed to present evidence as to how such a warning could have been effectively communicated to Mr. Jolly or that Mr. Jolly would have heeded such a warning. The court, however, applied the aforementioned reasoning, noting that the danger of asbestos gaskets, in particular, was known to neither Mr. Jolly nor his employer.
Defendants also argued that Plaintiffs failed to present the required evidence that a reasonable alternative design existed during the time that Mr. Jolly worked around Fisher and Crosby’s valves. The court of appeals acknowledged the lack of any evidence of the cost of any purported alternative design, a required element of design defect claims, but nevertheless held “there was no evidence that a metal gasket was more expensive than an asbestos gasket,” which Appellants contend erroneously shifted the burden from Plaintiffs onto Appellants.
The Supreme Court of South Carolina has denied Appellants’ petition for a writ of certiorari with respect to the aforementioned issues, which could lead to confusion and errors in other trials going forward.
Appellants also challenged the circuit court’s decision to grant the Plaintiffs a new trial nisi additur and significantly increase the verdict amount, contending that the circuit court based its ruling on speculation as to the jury’s intent and did not articulate compelling reasons for increasing damages. The court, however, wholly rejected this argument, emphasizing that it will give “due deference to the circuit court’s exercise of discretion [to grant a new trial nisi additur]” and will disturb such only if the decision is “wholly unsupported by the evidence.” In doing so, the court noted that the “jury’s award of $200,000 was not sufficient to make Dale whole for the magnitude of his losses.”
Lastly, Defendants also challenged the circuit court’s refusal to apply setoffs for a portion of the settlement funds received by Plaintiff, instead allowing Plaintiffs to unilaterally allocate settlement proceeds to avoid a complete setoff. Prior to trial, Plaintiffs had receive $2,270,000 in settlement proceeds from various co-defendants, one-third of which was for “the release of future claims, including wrongful death[,]” which the circuit court excluding from the setoff of the verdict. In doing so, the court of appeals relied on a policy statement that South Carolina law “favors a plaintiff’s ability to apportion settlement proceeds ‘in the manner most advantageous to it[,]’” which Appellants contend directly contravenes S.C. Code Ann. § 15-38-50.
Several aspects of Jolly opinion have had, and will continue to have, future implications for asbestos litigation in South Carolina. The court’s acceptance of the “cumulative dose” theory seemingly allows plaintiff’s experts to testify that each and every exposure to asbestos contributes to the development of mesothelioma, easing plaintiff’s burden of proving causation in such cases. The lack of review and clarification from the Supreme Court of South Carolina with respect to the cumulative dose theory and substantial factor causation test, among other things, could lead to conflict and uncertainty going forward. Additionally, the affirmation of the circuit court’s additur award and setoffs holding signaled that the court of appeals will give much deference to the circuit court and will seldom, if ever, be inclined to disturb such in the absence of an obvious abuse of discretion. Therefore, the grant of certiorari by Supreme Court of South Carolina and subsequent review and clarification of these aspects of the Jolly opinion will significantly impact the landscape of asbestos litigation in South Carolina for the foreseeable future.
