< Back to 2021-2022 Executive Summary

South Carolina Asbestos Litigation

A newcomer to the Judicial Hellholes® list in 2020, South Carolina’s consolidated docket for the state’s asbestos litigation has developed a reputation for discovery abuse, unwarranted sanctions, low evidentiary requirements, and multi-million-dollar verdicts. As a result, the state has become a hot spot for asbestos claims. While the volume of litigation dramatically decreased this year, in large part due to COVID-19 shutdowns, the court’s tendency to favor plaintiffs continues. The court’s drop in the rankings is not a result of any reforms or changes in approach, but rather a reflection of the decrease in activity and the severity of abuses in other jurisdictions.

JUDGE DEMONSTRATES UNABASHED PARTIALITY TOWARD PLAINTIFFS

In 2017, retired South Carolina Supreme Court Chief Justice Jean Hoefer Toal was appointed to pre- side over South Carolina’s asbestos docket. Over the past four years, 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 several asbestos cases, Judge Toal has overturned or substantially modified jury verdicts she did not 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.

Preclusion Of Defense’s Evidence/Take-Home Exposure

In September 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 and did not allow the jury to hear evidence that could have significantly altered the outcome.

In the 1980s, Weist was working at a Louis Reich Co. facility owned by Kraft Heinz where he was allegedly exposed to asbestos-containing materials manufactured and distributed by Metal Masters. Weist claimed that asbestos from Metal Masters’ products stuck to his clothing and Kraft Heinz failed to warn him about the dangers of second-hand exposure. 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 million in punitive damages against Kraft Heinz.

What the jury did not learn is that Weist’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.

FILINGS ON THE RISE DESPITE NATIONAL DROP-OFF, TEXAS FIRM HAS FREE REIN

Those familiar with South Carolina asbestos litigation say that Judge Toal almost always sides with plain- tiffs’ lawyers from Dallas, Texas, Law Offices of Dean, Omar, Branham and Shirley and their local counsel Kassel McVey.

Although national asbestos claim filings are down 9%, lawsuits are skyrocketing in South Carolina due to the activity of Dean Omar Branham Shirley, which increased its complaint filings by 400% between 2017 and 2020.

Jessica Dean, the firm’s lead partner, recently 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. Additionally, courts in Connecticut and Iowa rejected Dean’s requests to try cases in those states, and a Minnesota judge sanctioned her $78,000 in defense fees and costs after her witnesses flouted a court order.

Dean Omar Branham Shirley 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 just does not like the answers at the deposition, the firm seeks sanctions.

In a sample of five 2020 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 cannot 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.

HIGHLY ANTICIPATED APPELLATE DECISION A BIG DISAPPOINTMENT

In September 2021, the South Carolina Court of Appeals delivered another blow to South Carolina’s asbestos litigation environment when it ruled in Jolly v. General Electric Co. Observers hoped that the appellate court would take the opportunity to rein in Judge Toal and restore some fairness and balance to the litigation. Unfortunately, the decision likely will only further embolden the plaintiffs’ bar.

Jolly was the first asbestos case ever heard by Judge Toal. At trial, the jury returned a modest verdict against Fisher Control and Crosby Valve. Judge Toal used a mechanism known as “additur” to increase the award by almost $1.6 million. Judge Toal has made a habit of overturning or modifying jury verdicts with which she disagrees.

Judge Toal also allowed Dean Omar to manipulate setoff in a manner they have continued in cases following Jolly. A setoff prevents double recovery for a single harm. It reduces the plaintiff’s award to deduct money already paid to the plaintiff by the defendant or by other sources for the same injury. The appellate court left the setoff unchanged, a decision that will encourage Dean Omar and other plaintiffs’ firms to continue this pattern of behavior.

The trial court did not fully consider amounts that the plaintiff had already received as settlements for the same injuries, which should have been deducted from the verdict and the appellate court affirmed. The appellate court’s decision also gives Judge Toal leeway to increase awards beyond the jury’s verdict.

The court rejected Appellant’s argument that the allocation of funds for a future wrongful death claim is compensation for the personal injuries at issue here because wrongful death damages benefit all of plain- tiff’s heirs/beneficiaries, not only Plaintiff and his wife “[t]herefore, this slight overlap in damages does not rise to the level of a ‘double recovery.’”

Appellants also argued that the circuit court should have rejected the plaintiff’s allocation of settlement proceeds to a future wrongful death claim because signing a release of a personal injury claim forecloses a future wrongful death claim. The court rejected Appellants’ assignment of error because “[i]t logically follows that those proceeds should be allocated among the claims that were released.”

The court also allowed an “any exposure” theory that, contrary to science, allows plaintiffs to recover from any defendant that exposed them to asbestos, no matter how miniscule the exposure compared to other sources.