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South Carolina Asbestos Litigation

South Carolina asbestos litigation was included on the Watch List in 2019, thanks to its reputation for pro-plaintiff rulings and unfair treatment of defendants in the court overseeing these cases. A concerning pattern of discovery abuse, unwarranted sanctions, low evidentiary requirements, and multi-million-dollar verdicts solidified its position as a Judicial Hellhole.

Last year’s Judicial Hellholes report warned that unless South Carolina addressed these issues and returned the handling of asbestos cases to the individual counties in ordinary course, plaintiffs would likely continue to exploit these troubling and inequitable practices. Unfortunately, that is just what has happened and the abuse has reached such levels as to elevate South Carolina asbestos litigation to near the top of the list.

PRO-PLAINTIFF JUDGE OVERSEES DOCKET

Retired South Carolina Supreme Court Chief Justice Jean Hoefer Toal was appointed as the state’s presiding asbestos judge in 2017. Since then, Judge Toal has built a record of broad pro-plaintiff rulings and has imposed severe and unwarranted discovery sanctions on defendants in almost every case she hears.

In March of 2019, Justice Beatty issued a surprise order that, without explanation, relieved Judge Toal of her oversight of asbestos cases. Three months after that, on May 28, 2019 Justice Donald Beatty issued a third order indicating Judge Toal would be the Chief Judge for Administrative Purposes over asbestos cases in South Carolina, again without any explanation.

In several asbestos cases, Judge Toal has overturned or substantially modified jury verdicts she didn’t agree with, inappropriately consolidated substantially different cases into one trial, and made the unusual move of naming insurance carriers as the “alter egos” of their insureds.

In May 2020, Zurich American Insurance Company asked the South Carolina Supreme Court to recuse Judge Toal from its litigation writing that her “factually unsubstantiated and procedurally irregular findings call into question Chief Justice Toal’s impartiality and create an unacceptable risk of actual bias.”

“Factually unsubstantiated and procedurally irregular findings call into question Chief Justice Toal’s impartiality and create an unacceptable risk of actual bias.”
- Zurich American Insurance Co.

TEXAS PLAINTIFFS' FIRM FILES MOST SOUTH CAROLINA CASES

Those familiar with South Carolina asbestos litigation say Judge Toal almost always sides with plaintiffs’ lawyers from the Dallas, Texas, Law Offices of Dean, Omar, Branham and Shirley and their local counsel Kassel McVey. Dean Omar started filing cases in South Carolina five years ago and now dominates the state’s asbestos docket. KCIC Consulting reports that since 2018, a period when asbestos case filings nationally fell by nine percent, the Texas firm’s asbestos filings in South Carolina increased by 250%.

Dean Omar Branham Shirley routinely demands overbroad discovery in conjunction with corporate defendant depositions, in which defendants are required to turn over what defendants believe are excessive, irrelevant, and often impossible to produce documents. When defendants can’t comply, or Dean Omar just does not like the answers at the deposition, the firm seeks sanctions.

In just five recent cases, the firm filed at least 22 motions for discovery-related sanctions, including eight motions against defendant companies in just one case.

Those familiar with the history of asbestos litigation in South Carolina say they can’t remember any sanctions motions being filed in the seven years before Judge Toal took over the asbestos docket from Judge D. Garrison Hill. He served as the state’s top asbestos judge from 2011 until 2017, when he was elected to the South Carolina Court of Appeals.

RUBBER STAMPS PLAINTIFFS' SANCTIONS MOTIONS

Judge Toal grants the Dean Omar firm’s motions for severe sanctions in the great majority of cases. The sanctions she imposes often include an adverse instruction at the beginning of trial in which the Judge tells jurors that the plaintiff was exposed to the defendants’ asbestos products, a crucial fact that should be decided by the jury based on the evidence.

In three cases involving long bankrupt defendant Covil Corporation, Judge Toal issued what is referred to as a “doomsday sanction” striking all of the insulation company’s pleadings in three separate cases. 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.

National asbestos attorneys say Judge Toal’s discovery orders are more frequent, broader, and the sanctions more severe than in any other jurisdiction. In 2019, in response to a defense counsel’s argument that a deposition notice was “Rare as hen’s teeth.”

OVERTURNED A DEFENSE VERDICT AND ADDED TO JURY AWARDS

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

For example, in a 2018 case, after Covil Corporation said it could not produce old documents because the papers had been destroyed in a fire, the court sanctioned or punished 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 Jerry Crawford did not identify Covil in his deposition and a representative for another company, Daniel Construction, testified that it was a different company, not Covil, that had supplied all of the asbestos used in Mr. Crawford’s workplace.

Despite the judge’s instruction and after hearing all of the testimony, the jury found in favor of Covil Corporation.

Three months later, however, Judge Toal threw out the verdict by invoking South Carolina’s “thirteenth juror” doctrine, effectively allowing the judge to become the 13th juror in the case, “hanging” the jury and requiring a new trial.

On at least two occasions, Judge Toal has increased the amounts of jury awards when she believed the jury did not award enough money to the plaintiff.  In one case, she increased an award to a plaintiff and his wife by more than $1.6 million.  In another case, without any explanation she increased a jury award by $400,000.  Both cases are currently in front of the South Carolina Court of Appeals.

In another 2018 asbestos case in which the jury found for defendant Cleaver-Brooks, Judge Toal after the trial ordered the company to pay more than $300,000 for the plaintiff’s legal fees, including charges for Ubers and taxicabs in Texas.  The plaintiff’s lawyers lost the case because the jury found that a surprise theory sprung by the lawyers during the trial turned out to be factually inaccurate.  The jury also found that the plaintiff was not exposed to asbestos from a Cleaver-Brooks’ product.  The case is in front of the South Carolina Court of Appeals.

 

DEFENDANTS QUESTION JUDGE TOAL'S IMPARTIALITY

On January 8, 2020, Judge Toal issued a sweeping contempt order ruling that Zurich, United States Fidelity and Guaranty Co. (USF&G) and other insurers essentially operated Covil Corporation as an “alter ego” controlling all its affairs. The judge’s order allows plaintiffs to sue insurers as if they are companies that made or sold asbestos.

USF&G filed a writ with the South Carolina Supreme Court to stay the order, writing “even putting aside the due process, jurisdictional, and procedural defects of this purported finding, as a matter of public policy this alter ego theory would, if accepted, turn the insurance relationship on its head.”

Zurich filed a writ of mandamus with the South Carolina Supreme Court writing that Judge Toal “has an obligation to recuse herself in order to safeguard Zurich’s fundamental right under South Carolina law and federal due process to a ‘fair trial in a fair tribunal.’”

Both the USF&G and Zurich writs were denied on procedural grounds.

 

IMPROPER CONSOLIDATION OF ASBESTOS TRIALS

On March 13, 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 Johnson & Johnson’s Baby Powder.

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

The other case involved a young woman who was diagnosed at the age of 14 with peritoneal mesothelioma that is less strongly associated with occupational asbestos. Studies, cited by J&J, show between 95 percent and 99 percent of that type of mesothelioma in women is the result of naturally occurring genetic errors during cell replications. The woman underwent surgery and chemotherapy and is currently 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 have 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 an immediate review of Judge Toal’s consolidation order, but the parties reached a settlement before the appellate court had an opportunity to rule.

JUDGE TOAL SAYS SHE MAY CONSOLIDATE OTHER CASES

On April 8, 2020, Judge Toal emailed businesses named as defendants in asbestos cases before her court and indicated that she was going to consolidate five cases into one September trial in Richland County. The five cases include plaintiffs with different diseases and occupations and involve 141 defendants from over 140 different worksites that span nineteen different states with different laws.

On May 15, 2020, after dozens of company defendants filed vehement objections to the consolidation, arguing that they had not even been given a chance to object to the motion before the court decided to consolidate the cases, Judge Toal reversed herself and denied the plaintiffs’ motion to combine the cases. The judge, however, invited the plaintiffs to renew their consolidation motion after the facts of the cases are better developed and suggested consolidation may be needed to adapt to the COVID-19 pandemic.

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