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South Carolina Asbestos Litigation

South Carolina’s asbestos environment first landed on the Judicial Hellholes® list in 2020. Since that time, the trial judge who oversees the Palmetto State’s asbestos litigation – former South Carolina Supreme Court Chief Justice Jean Toal – has become more extreme, seemingly emboldened by the hands-off approach of the South Carolina appellate courts and some influential lawyer-legislators. Lawyers for corporate defendants in this hostile environment frequently express the view, “just when you think it can’t get much worse, it does.”

South Carolina’s asbestos judge has a clear bias against corporate defendants, particularly insurers. This bias is obvious in rulings that result in unfair trials and severe verdicts. Anti-corporate bias is also evident in the judge’s imposition of unwarranted sanctions, a willingness to overturn or modify jury verdicts to benefit plaintiffs, and frequent appointment of a receiver to maximize recoveries from insurers.

Recently, the South Carolina Supreme Court endorsed the trial court’s low evidentiary requirements and liability expanding rulings. The state is a hotspot for asbestos claims.

More Claims, Driven By Out-Of- State Firms, Perceived Favoritism For Former Law Clerk

South Carolina asbestos filings have “more than doubled” since the state’s high court picked Judge Jean Toal to “serve as judge for all of the state’s asbestos cases in 2017.” Before Judge Toal’s appointment, “the state was not a very active asbestos jurisdiction,” according to consulting firm KCIC. Beginning in 2019, however, the number of asbestos filings took off under Judge Toal. On a percentage basis, the number of new asbestos cases filed in South Carolina in recent years “is one of the largest increases in the nation.” KCIC notes “this data only captures filings against traditional asbestos defendants and does not include talc- based cases that are also being filed in Richland County, which are also on the rise.”

Cases alleging that asbestos exposure caused a person’s lung cancer in particular are significantly increasing. As of mid-October 2024, there were triple the number of lung cancer lawsuit filings in the Palmetto State (twelve) compared to all of 2023 (four). 2024 lung cancer filings are on pace to shatter the previous record over a ten-year period (seven in 2022). Before Judge Toal took over the asbestos docket, lung cancer filings were rare in South Carolina (eight cases total from 2014-2017).

Year-end filings in South Carolina are likely to be far higher. After the period for which KCIC collected 2024 filing data, the Law Offices of Dean Omar Branham Shirley, LLP from Dallas, Texas filed a 91-page complaint on behalf of over 150 asbestos plaintiffs seeking damages against De Beers PLC and its affiliated companies.

Most of the asbestos lawsuits in South Carolina since Judge Toal took over the docket have been filed by the Dean Omar firm. Those familiar with South Carolina asbestos litigation say that Judge Toal typically sides with the Dean Omar firm and its local counsel, Kassel McVey Attorneys at Law, which includes partner Thiele Branham McVey, the sister of Dean Omar name partner Trey Branham. Kassel McVey attorney Jamie Rutkoski is a former law clerk to Judge Toal.

In 2021, Dean Omar partner Jessica Dean withdrew from several South Carolina cases after news broke that a paralegal signed and filed Dean’s out-of-state-attorney applications without her knowledge. Courts in Connecticut and Iowa rejected Dean’s requests to participate in cases in those states, and a Minnesota judge sanctioned her firm $78,000 in defense fees and costs after a plaintiff’s witness flouted a court order.

Other out-of-state plaintiff firms that have filed asbestos cases in South Carolina include Meirowitz & Wasserberg, LLP of New York City and Florida; St. Louis-based Maune Raichle Hartley French & Mudd; and Flint Cooper LLC from southern Illinois.

Insurers “Alter Ego” Of Defunct Entities

Judge Toal has expanded the asbestos docket by appointing a receiver over various defunct entities to subject the companies to lawsuits like other asbestos defendants. One defense firm explains, “Justice Toal has regularly appointed receivers for defunct companies who supplied, installed, manufactured asbestos products, etc., and has regularly ruled that a company’s insurance policies, which would cover claims in SC, give her the authority to appoint a receiver.”

Persons familiar with South Carolina asbestos litigation says that Judge Toal has created at least twenty- one receiverships, using the same receiver – South Carolina personal injury lawyer Peter Protopapas – to pursue coverage under insurance issued to defunct companies. Lester Brickman, emeritus professor at Cardozo School of Law in New York and an expert on asbestos litigation, has said he is “not aware of this procedure having been adopted in any other jurisdiction.”

A September 2024 Legal Newsline article explains how the process works in South Carolina:

Armed with subpoena power and a contingency-fee agreement awarding him a third of whatever he recovers, Peter Protopapas has used the receiver power granted to him by Toal to take control of more than 20 dead companies and sue their former insurers over old policies he says cover asbestos claims, scoring millions of dollars as the leader of these zombies.

He’s acting in the name of a nonexistent company and doesn’t need approval from anyone once associated with it. The money he recovers doesn’t flow directly to plaintiffs: In some cases, it goes into secretive Delaware partnerships where Protopapas has broad discretion to spend it on anything related to asbestos litigation, including fees for other plaintiff lawyers.

The Delaware partnerships, called “qualified settlement funds” or QSFs, operate “almost entirely out of public view thanks to orders signed by Judge [Toal],” according to Legal Newsline. The arrangements were the topic of an October 2024 American Legal Record podcast with Legal Newsline writer Daniel Fisher. According to Legal Newsline, “The QSFs are structured under a provision of the federal tax code allowing money to flow into partnerships without incurring tax as long as the money is ultimately used for litigation expenses.”

Judge Toal has reportedly approved at least ten QSFs in asbestos cases. In just one of those matters, it has been reported that the receiver “collected a third of at least $50 million” in settlements with dissolved company Covil Corp.’s former insurers to fund a QSF.

One website notes, “Since that first payday, all subsequent ‘settlements’ have been under seal and the amounts have not been publicly disclosed.” Some insurers support maintaining the confidentiality of their settlements with the receiver as necessary to their “ability to resolve cases fairly and consistently in the future.”

Some of the companies for which receivers have been appointed are not based in South Carolina, and some are not U.S. companies or even defunct.

In May 2024, a New Jersey federal court refused an effort by the receiver to block talc supplier Whitaker Clark & Daniels (WCD) from filing bankruptcy in New Jersey. Judge Toal appointed the receiver following a verdict of over $29 million against WCD in South Carolina in 2023.

In another matter, Judge Toal appointed a receiver for Payne & Keller, a Texas firm that was dissolved in the early 1990s. Her order “suggest[ed] that a South Carolina state court somehow has the power to revoke the termination of a foreign corporation and reinstate its corporate existence in another state as if the dissolution never happened.”

Judge Toal also appointed a receiver for Atlas Turner, a Canadian asbestos mining firm that was “once owned by the government of Quebec.” When this foreign company refused to respond to discovery in a South Carolina asbestos case in 2023, Judge Toal held the company in contempt, struck its pleadings, held it in default, and, at plaintiffs’ request, appointed a receiver to “administer ‘any insurance assets’ including ‘any claims related to the actions or failure to act of Atlas’s insurance carriers.’”

In addition, Judge Toal appointed a receiver for Cape Plc, “a onetime South African asbestos mining company whose corporate successor is now owned by a French billionaire.” She gave the receiver, Protopapas, broad powers to “sue third parties for money to pay asbestos claims.” The receiver has sued Cape’s former insurers in Cape’s name and has sued other companies including Anglo American and De Beers, “accusing them of a long-running scheme to hide assets from U.S. asbestos claimants.” The South Carolina trial is scheduled for February 2025. It has been reported that Judge Toal has “issued unusual rulings, including one finding that since Cape refused to answer claims in her court all of the allegations [the receiver] made against third parties and Anglo American are accepted as fact.”

Cape asked the High Court of Justice in the U.K. to halt the receiver “from suing others … in Cape’s name.” In the U.K. suit, Cape argued that “Judge Toal has no jurisdiction over the company and no authority to appoint [the receiver] in charge of an operating company that has its own board of directors.” Protopapas “allegedly slammed the door on a process server after threatening them with a trespassing notice.”

In November 2024, the High Court of Justice issued a worldwide ruling that sets up an “international legal clash.” The Court issued an injunction prohibiting Protopapas from acting or purporting to act as a receiver for Cape. The Court found that Protopapas “has purported to make admissions, and to run a positive case, which is positively damaging to the legitimate interests of the company over whose assets he has been appointed, despite the fact that one of his obligations is to act in its proper interests.” For instance, the Court said that Protopapas has made admissions as Cape’s representative that “would make it much easier for plaintiff lawyers to win cases against Cape, the company Protopapas is supposed to be defending.”

The British court said that Protopapas had committed the tort of acting as an “imposter” for causing or potentially causing loss in South Carolina while purporting to act as agent of Cape without authority recognized in English law. The High Court of Justice noted that a British court in a landmark prior case, Adams v. Cape Industries (1990), specifically rejected arguments that Cape is subject to the jurisdiction of the courts in South Carolina – “meaning Protopapas is actually making legal arguments the company he purports to represent already defeated in court.”

The High Court also noted the “aggressive propensities” employed by Protopapas, saying his conduct “looks intimidatory.” For instance, the Court explained how Protopapas threatened to sue solicitors for Cape, forcing them to withdraw from the case. The Court said, “To English eyes at least, to commence proceedings against solicitors who bona fide advance a case on behalf of their client on the basis that it is ‘extortion’ is, to put it mildly, completely misplaced.” The Court added that Protopapas’ “ultimatum that the solicitors withdraw a letter sent on behalf of a client, or face being sued personally, makes a demand that the solicitors could not properly comply with because of their duties to their clients. It is surprising that a lawyer (which Mr. Protopapas is) would not appreciate that.” The Court also noted that Protopapas used aggressive discovery demands to pressure a former federal judge from the Fourth Circuit Court of Appeals to abandon expert opinions he offered on Cape’s behalf regarding the powers of a receiver under South Carolina law.

Similarly, Judge Toal appointed a receiver for Asbestos Corporation Ltd. (ACL), a Canadian company that still has active management and assets. The appointment of a receiver for ACL was made as a discovery sanction even though ACL claimed it was unable to respond to the requested discovery pursuant to Canadian law. Very recently, certain insurers filed a petition for writ of prohibition in the South Carolina Supreme Court asking the court to void the appointment of a receiver in ACL and prohibit the receiver from taking any action on behalf of ACL.

“To English eyes at least, to commence proceedings against solicitors who bona fide advance a case on behalf of their client on the basis that it is ‘extortion’ is, to put it mildly, completely misplaced.”
- UK High Court of Justice

“Desperately Incestuous” Legal System

State Representative Jordan Pace recently described the state’s legal system as “desperately incestuous” in the Palmetto State News. He explained, “You have government-appointed officials who argue in front of [judges] and [the judges] depend on their jobs from elected officials. It’s a horrible cycle of back scratching at the expense of the general public.” He said, “The Toal situation just adds to that already problematic system.”

Indeed, Judge Toal’s courtroom “represents a microcosm of South Carolina’s political structure.” As explained, Judge Toal’s frequent appointments of a receiver in South Carolina has generated substantial fees for the receiver and related counsel. One of the lawyers allegedly benefitting from this scheme is Speaker of the South Carolina House of Representatives, G. Murrell Smith, a lawyer who represents the court- appointed receiver.

Speaker Smith is a key figure in South Carolina’s judicial selection system. In South Carolina, a Judicial Merit Selection Commission (JMSC) screens and recommends candidates for judicial office to the General Assembly. The “Senate and the House of Representatives are charged with electing justices to the Supreme Court, and judges to the Court of Appeals, to the Administrative Law Judge Division, to the Circuit Court, and to the Family Court.” South Carolina is one of two states where the Legislature elects most judges.

The JMSC is currently comprised of ten members; the Senate and House of Representatives each appoint five members. This means that the Speaker not only selects half of the members of the judicial nominating committee but has considerable influence over any vote on the House floor to confirm the judges.

It has been reported that “[f]ive of the six lawmakers” on the JMSC are personal injury lawyers: “Chairman, GOP Rep. Micah Caskey; Sens. Ronnie Sabb, Luke Rankin and Scott Talley; and Rep. Todd Rutherford.” Those five legislators as well as another lawmaker on the JPMC, Rep. Wallace “Jay” Jordan Jr. have received substantial contributions from the South Carolina Association for Justice. The trial bar has “given $1.6 million to state candidates over 17 years, with more than $100,000 going to the six members of the [JSMC].”

Legal Newsline reports that “[t]hree of the four citizen members of the commission also are personal injury lawyers, one of whom has offices at the same address as [receiver Protopapas].

The South Carolina Senate Judiciary is another example of the trial bar’s influence over the judicial process. Almost half (ten) of the committee’s twenty-three members are personal injury lawyers, including Chairman Luke Rankin.

The “South Carolina Bar counts 28 lawyer-legislators in the 124-member House and 19 in the 46-member Senate.” A reform measure (S.B. 1046) passed in June giving the governor four picks on an expanded 12-member JSMC, but that law does not go into effect until July 2025. In a signing statement, Governor Henry McMaster described the modest reform of the state’s judicial selection process as “a first step – but by no means the last – in implementing meaningful judicial reform.”

Large Number of Defendants Named

Before Judge Toal began managing the South Carolina asbestos docket, the number of defendants named in South Carolina cases was less than the national average. Since Judge Toal began managing the docket, however, the number of defendants has skyrocketed for both mesothelioma and lung cancer lawsuits. Since 2020, the number of defendants named in South Carolina asbestos cases has far exceeded the national average, according to KCIC data.

Severe And Unwarranted Sanctions

National asbestos attorneys say Judge Toal’s discovery orders are more frequent, broader, and the sanctions more severe than in any other jurisdiction. She has “ordered sanctions on several occasions, including monetary, additurs, and the striking of pleadings.” According to a 2024 article, “Judge Toal has a pattern of using sanctions orders-including rich fees for the lawyers who seek them-to discipline companies she believes have been defying her.”

Sanctions in asbestos cases are rare outside of South Carolina. Also, lawyers familiar with asbestos litigation in South Carolina say they cannot remember sanctions motions being filed in the seven years before Judge Toal took over the asbestos docket.

The Dean Omar firm routinely demands overbroad discovery in conjunction with corporate defendant depositions, in which businesses are required to turn over what they believe are excessive, irrelevant, and often impossible to produce documents. When defendants cannot comply, or Dean Omar does not like the answers at the deposition, the firm seeks sanctions. In a 2020 sample of five cases, the firm filed 22 motions for discovery-related sanctions, including eight in one case.

In three cases involving bankrupt defendant Covil Corp., Judge Toal issued what is referred to as a “doomsday sanction,” striking all of the insulation company’s pleadings. In its appeal, Covil described the sanctions as a “hydrogen bomb” and wrote that the judge abused her discretion in imposing a punishment so disproportionate to the alleged litigation misconduct, which the company denied.

Defendants had hoped that the South Carolina Supreme Court would curb Judge Toal’s extraordinary habit of imposing sanctions in asbestos cases when the court agreed to review “the largest monetary sanction ever reported in South Carolina jurisprudence—over $300,000.” The sanction was imposed after a jury returned a defense verdict in Howe v. Air & Liquid Systems Co.

The asserted basis for the sanction was Cleaver-Brooks, Inc.’s production of documents during trial that rebutted a surprise theory sprung by the plaintiff’s lawyers at trial that turned out to be factually inaccurate.

According to Cleaver-Brooks, the documents “were never the subject of any discovery request, and they had no relevance to the case prior to the Plaintiff’s surprise in-court questioning.” Cleaver-Brooks described Judge Toal’s sanction as an “historic injustice”:

Cleaver-Brooks won this case at trial by jury, yet has been slapped with the largest monetary discovery sanction in this state’s history—over $300,000—without any explanation from any court as to what it did wrong or what it could possibly have done differently. Respectfully, this historic injustice finds no support in the record of this case or the law governing these issues, and it demands reversal.

The South Carolina Court of Appeals summarily affirmed the trial court’s order “without explanation or even holding oral argument.” The South Carolina Supreme Court agreed to review Howe, but the appeal was dismissed after the parties resolved the case.

The South Carolina Court of Appeals affirmed another post-trial sanctions order in Glenn v. 3M Co. The South Carolina Supreme Court denied review in August 2024.

In 2022, the South Carolina Supreme Court in Kovach v. Whitley, a non-asbestos case, held that Judge Toal erred in imposing a sanction against a plaintiff who filed a lawsuit that was at odds with representations the plaintiff made in a prior criminal action. The South Carolina Supreme Court found “no factual basis on which to justify an award of sanctions.” The court also noted there were “a host of reasons” why the amount of the sanction may have been “an additional abuse of discretion.”

“Judge Toal has a pattern of using sanctions orders-including rich fees for the lawyers who seek them-to discipline companies she believes have been defying her.”
- Legal Newsline article, 2024

"Welcome to Hell"

Judge Toal has a broad record of pro-plaintiff rulings from the discovery stage of cases to “pretrial rulings that hardly ever favor the defense” to unfair trials and then, “after the jury returns the inevitable plaintiff verdict, the judge is more likely to issue an additur than a JNOV.” In a September 2024 commentary titled “Welcome to Hell,” one lawyer described a pretrial experience in a “designated Judicial Hellhole®” that undoubtedly was Judge Toal’s courtroom:

The judge did not even attempt to hide full-blown contempt for the defense positions. There was a visible, emotional impact to the judge’s adverse rulings. The judge seemed angry that the defense had the temerity to try to defend itself. But when the plaintiff lawyers argued, the judge’s features softened. There were nods of appreciation, and occasional suggestions for other points that might support the plaintiff ’s position. We couldn’t help but recall the old Rumpole of the Bailey stories by John Moritimer (who was himself a barrister in London courts). Dear old Rumpole at one point politely inquired of a judge whether they might be more comfortable climbing down from the bench and assuming a seat at opposing counsel’s table.

The judge drastically curtailed the scope of defense expert witness opinions. It seemed that these rulings were animated not so much by the rules of evidence as by the simple fact that the judge disagreed with the defense experts. The judge also excluded most theories of alternative causation. There were several moments when it looked as if the judge would issue a directed verdict in favor of the plaintiff. Why even go through a show trial?

We had heard that this judge sometimes told defendants in open court that they were in for a rough time, so maybe they should seriously consider settlement. Mind you, these suggestions of reeling in ambitions and settling for a nonoptimal amount were never directed to plaintiffs. Anyway, we did not get to hear that speech from the judge. But we did get the message. After seeing, and feeling the reasons for ATRA’s entirely correct designation, we got out.

What advice did the commentator give after witnessing “justice” meted out in Judge Toal’s courtroom? “Stay away. Get out of cases early, do as little business in the jurisdiction as possible, and drive 500 miles out of the way if need be to avoid being anywhere near the place,” the article warned. “If anything,” the commentator said, “the ATRA Hellhole designation understates how one-sided the court system (at least the one specific docket) is in this otherwise charming place.”

“Stay away. Get out of cases early, do as little business in the jurisdiction as possible, and drive 500 miles out of the way if need be to avoid being anywhere near the place... If anything, the ATRA Hellhole designation understates how one-sided the court system (at least the one specific docket) is in this otherwise charming place.”
- Steven McConnell, South Carolina commentator

Trial Court “Fattens Verdicts When She Wants” And Boosts Awards Through Unfair Partial Setoffs, Blessed By SC Supreme Court

On at least two occasions, Judge Toal increased jury awards when she believed the juries did not award enough money to the plaintiffs. A recent headline referred to Judge Toal as a “Jury of one” who “fattens verdicts when she wants.” To benefit plaintiffs, Judge Toal applies a doctrine known as nisi additur, which is “banned as unconstitutional in federal courts.” She also allows plaintiffs to allocate pretrial settlements in a way that deprives defendants of a full setoff for those payments after a verdict, substantially boosting plaintiffs’ awards.

In Jolly v. General Electric Co., Judge Toal increased an award to a worker and his wife by some $1.6 million. The jury awarded the worker $200,000 in actual damages and $100,000 to his wife for loss of consortium. Judge Toal increased the worker’s award to $1.58 million – “a multiplier of almost eight times the jury’s verdict” – and nearly tripled the wife’s award to $290,000. Judge Toal’s order “gave the defendant’s a choice: Pay the higher amount or risk a new trial.” The plaintiffs had already obtained $2.3 million in pre-trial settlements from other defendants.

The South Carolina Supreme Court affirmed in 2024. The court conceded that the additur award was a “significant increase” but nevertheless decided that Judge Toal was within her discretion to increase the award based on general observations by one of the plaintiffs’ experts. The Jollys did not provide any documentation to support the expert’s estimate. Chief Justice John Kittredge issued a dissent, pointing out that Judge Toal’s decision “represent[ed] an increase far beyond any additur this Court has upheld.”

ATRA filed an amicus brief in Jolly, explaining that “[w]ithout clear boundaries, South Carolina risks becoming an outlier jurisdiction in its use of additur in asbestos cases.” ATRA’s brief explained

Additur is virtually nonexistent in asbestos cases outside of South Carolina. For instance, a Lexis+ search of the term “additur” in the Mealey’s Asbestos Litigation Reporter database— which reports regularly on rulings in asbestos cases nationwide—returns only two examples of a court outside of South Carolina awarding additur in an asbestos case in over thirty years. South Carolina, in comparison, boasts two recent examples: [Jolly] and Edwards v. Scapa Waycross Inc., … where the same trial court increased an asbestos plaintiff ’s survival damages from $600,000 to $1 million.

ATRA’s amicus brief also noted that additur is “rare in non-asbestos cases in South Carolina and nationally…. In states allowing the practice, empirical evidence suggests ‘almost no use of additur.’”

The South Carolina Supreme Court’s Jolly decision suggests that the Court “is unlikely to disturb a lower court’s grant of a motion for a new trial nisi additur except in the rare circumstance where it finds the decision ‘wholly unsupported by the evidence.’”

Separately, the South Carolina Supreme Court in Jolly affirmed a decision by Judge Toal to allow the plaintiffs to “unilaterally designate a third of the $2.3 million in prior settlements as payments toward an expected wrongful death case” after Mr. Jolly’s death. This further boosted the plaintiffs’ recovery by denying the defendants a setoff for the large portion of the settlements that the plaintiffs allocated for future wrongful death claims.

As explained in ATRA’s amicus brief in Jolly, “The combined effect of the trial court’s additur and setoff rulings is that . . . Plaintiffs will recover more than $3 million ($2.27 million in settlements and $823,333.33 from [the two trial defendants] after partial setoffs), plus interest significantly above the prime rate, for claims the jury determined were worth only $300,000.”

In Edwards v. Scapa Waycross, Inc., Judge Toal increased a jury’s $600,000 survival damages award to $1 million. She also refused to reallocate plaintiff’s internal apportionment of settlement proceeds to be more reasonable under the facts. The South Carolina Court of Appeals affirmed. The South Carolina Supreme Court denied review of this aspect of the appellate court’s opinion.

Weak Causation Standard Applied, Affirmed

In Edwards v. Scapa Waycross, Inc., the South Carolina Supreme Court in 2024 delivered a significant blow to South Carolina’s asbestos litigation environment by affirming a verdict based on a controversial “cumulative dose” theory of causation espoused by plaintiffs’ experts. The theory allows plaintiff’s experts to testify that every exposure to asbestos contributes to the development of asbestos-related disease, making it easier for plaintiffs to establish causation. The cumulative dose theory is an outgrowth of the discredited “each and every exposure” theory, which espouses the view that “every exposure to asbestos above a threshold level is necessarily a substantial factor in the contraction of asbestos-related diseases.”

As the U.S. Court of Appeals for the Seventh Circuit has explained, “just like ‘each and every exposure,’ the cumulative exposure theory does not rely upon any particular dose or exposure to asbestos, but rather all exposures contribute to a cumulative dose.” Both theories are incompatible with the substantial factor standard required for causation, but the South Carolina Supreme Court views cumulative dose testimony as admissible background information to aid the jury’s understanding of medical causation. This permissive approach allows plaintiffs’ experts to present their theory to juries, leading jurors to find, as in Edwards, that minimal exposure to a defendant’s product was a “substantial factor” in bringing about the result.

ATRA filed an amicus brief in Edwards joined by a number of allies. ATRA’s amicus brief explained:

[T]he widely-rejected every exposure approach [and] cumulative exposure testimony propounded by Plaintiff ’s experts…are identical in foundation and application—neither one excludes minor workplace or bystander exposures. By lumping various exposures, regardless of substantiality, under the heading of “cumulative,” plaintiff ’s experts attempt to transform even the most limited exposure into a legally “substantial” one.

The South Carolina Supreme Court’s holding stands in stark contrast to jurisdictions such as New York, which reaffirmed in Nemeth v. Brenntag North America in 2022 that “plaintiffs must rely on expert opinions that establish a scientific expression of dose with sufficient, case-specific, specificity, to establish proof of causation that a particular defendant’s product caused their injuries. Conclusory or qualitative statements do not suffice.”

Nuclear Verdicts

In August 2024, a couple won a $63.4 million verdict against Johnson & Johnson (J&J) and co-defendant beauty product manufacturer American International Industries (AII) alleging that the plaintiff’s mesothelioma was caused by asbestos in talc-based baby powder. The jury awarded the plaintiff $3.8 million in economic damages and $19.3 million for pain and suffering. The plaintiff’s spouse was awarded $9.6 million in loss of consortium damages. In addition, the jury held J&J liable for $30 million in punitive damages and AII liable for $760,000 in punitive damages. Jurors were not allowed to hear that the plaintiff “worked in a building later condemned for being ‘full of asbestos’ and told his doctor about his suspected exposure to the deadly fibers.”

A J&J spokesperson said the verdict “is irreconcilable with the decades of independent scientific evaluations confirming talc is safe, does not contain asbestos, and does not cause cancer.” J&J filed a motion for judgment notwithstanding the verdict and/or a new trial. The brief argues that “numerous errors of law were made by Judge Toal before and during the trial and allowed to proceed.”

In March 2023, a woman won a $29.1 million verdict against ex-talc supplier Whittaker Clark & Daniels alleging that she developed mesothelioma from exposure to asbestos in cosmetic talc products. The company was forced to file bankruptcy after the verdict and Judge Toal appointed a receiver to “take over its operations.”

In 2021, a jury awarded $32 million to a worker whose wife died from mesothelioma allegedly caused by second- hand asbestos exposure. Judge Toal presided over the case. In the 1980s, the plaintiff worked for Metal Masters at a turkey processing facility owned by Kraft Heinz. The plaintiff alleged that he and his father were exposed to asbestos through their work at the facility, and brought asbestos home on their clothing. The plaintiff’s wife allegedly died from exposure to asbestos while doing their laundry. Kraft Heinz and Metal Masters were ordered to pay $11 million in survival damages, $10 million in wrongful death damages, and $1 million in loss of consortium damages. The jury imposed another $10 mil- lion in punitive damages against Kraft Heinz. What the jury did not learn is that the plaintiff’s wife was not just exposed to asbestos on her husband’s clothing, but that her father, an insulator, and uncle also worked in places where asbestos was present.

Even When Defendants Win, They May Lose

Judge Toal has a record of overturning or modifying jury verdicts with which she disagrees.

For example, in a 2018 case, after Covil Corp. said it could not produce old documents because the papers had been destroyed in a fire, the court found that spoliation occurred and sanctioned the company with an adverse instruction effectively telling the jurors to presume the company exposed the plaintiff to asbestos in his workplace.

The judge did this even though the plaintiff did not identify Covil in his deposition and a representative for another company, Daniel Construction, testified that did not have any records indicating that Covil supplied insulation for the plaintiff’s workplace and could not definitively place Covil as a supplier or con- tractor at the plant.

Despite the judge’s instruction and after hearing all of the testimony, the jury reached a defense verdict. Three months later, Judge Toal threw out the verdict by invoking South Carolina’s “thirteenth juror” doctrine. As explained by the South Carolina Supreme Court, the effect of the thirteenth juror doctrine “is the same as if the jury failed to reach to a verdict…. When a jury fails to reach a verdict, a new trial is ordered. Neither judge nor the jury is required to give reasons for this outcome.” According to Judge Toal, “as the ‘thirteenth juror,’ the trial judge can hang the jury by refusing to agree to the jury’s otherwise unanimous verdict.” Judge Toal used this incredible power in Crawford to order a new trial, giving the plaintiff a second chance to win a case that was lost.

Improper Consolidation of Asbestos Trials

In 2020, Judge Toal granted a motion to consolidate two vastly dissimilar cases into one trial in which the plaintiffs claimed they contracted cancer as a result of exposure to asbestos in talc products.

One lawsuit involved a man who died at the age of 70 from pleural mesothelioma, a cancer that occurs in the lining of the lungs and is associated with asbestos exposure. Before this death, the plaintiff testified that he also worked with asbestos at a facility that manufactured products containing asbestos. Defendant Johnson & Johnson argued the man’s cancer was more likely to have been caused by his occupational exposure.

The other case involved a 20-year-old woman who was diagnosed at the age of 14 with peritoneal mesothelioma, which affects the lining of the abdomen and is less strongly associated with occupational asbestos. Studies cited by J&J, show between 95-99% of that type of mesothelioma in women is the result of naturally occurring genetic errors during cell replications. The woman underwent surgery and chemo- therapy and was cancer-free.

In its appeal of the consolidation order, J&J pointed out that South Carolina juries have heard three asbestos cases against the company and had yet to return a plaintiff’s verdict. One case resulted in a defense verdict and two others resulted in hung juries. Plaintiffs wanted to combine the above two cases, the company said, to “tilt the scales of the trials in their favor.”

The South Carolina Supreme Court agreed to review Judge Toal’s consolidation order, but the case settled before the appellate court had an opportunity to rule.

Door Opened for More Lawsuits

In 2021, the South Carolina Supreme Court in Keene v. CNA Holdings, LLC upheld a $16 million award to the family of a maintenance worker who died following years of asbestos exposure at a polyester fiber plant. Plaintiff’s employer had been hired by the plant’s owner to provide all maintenance and repair workers at the plant. The plant owner’s corporate successor argued that the plaintiff was a statutory employee so the state’s workers’ compensation law provided the exclusive remedy for his claims.

The South Carolina Supreme Court disagreed. In a landmark decision, the court narrowed the state’s “statutory employee” doctrine, making it easier for workers to bring lawsuits for many workplace injuries. The court held:

If a business manager reasonably believes her workforce is not equipped to handle a certain job, or the financial or other business interests of her company are served by outsourcing the work, and if the decision to do so is not driven by a desire to avoid the cost of insuring workers, then the business manager has legitimately defined the scope of her company’s business to not include that particular work.

“In short,” a practitioner explains, “[c]ourts will honor the company’s decision to have the work performed by someone other than an employee, the [statutory employee] doctrine will not apply, and the company can be sued in tort for injuries suffered by the worker.” The South Carolina Supreme Court added that the original purposes of the statutory employee doctrine are “certainly not served by granting [the plant owner] immunity for its wrongful conduct.” Dissenting Justice George C. James, Jr. said that the majority’s comment “will be taken to heart,” likely leading to more litigation against employers.

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