Jolly v. General Electric Company

THE STATE OF SOUTH CAROLINA
In The Court of Appeals
Beverly Dale Jolly and Brenda Rice Jolly, Respondents,
v.
General Electric Company, et al., Defendants,
Of whom Fisher Controls International LLC and Crosby
Valve, LLC are the Appellants.
Appellate Case No. 2017-002611
Appeal From Spartanburg County
Jean Hoefer Toal, Acting Circuit Court Judge
Opinion No. 5858
Heard November 2, 2020 – Filed September 1, 2021
AFFIRMED
C. Mitchell Brown, Allen Mattison Bogan, James Bruce
Glenn, and Nicholas Andrew Charles, all of Nelson
Mullins Riley & Scarborough, LLP, of Columbia, for
Appellants.
Theile Branham McVey and John D. Kassel, both of
Kassel McVey, of Columbia; and Lisa White Shirley and
Jonathan Marshall Holder, both of Dean Omar Branham
Shirley, LLP, of Dallas, Texas, all for Respondents.
GEATHERS, J.: In this complex mesothelioma case, Appellants Fisher Controls
International LLC (Fisher) and Crosby Valve, LLC (Crosby) seek review of the
circuit court's denial of their motions for a directed verdict and a judgment
notwithstanding the verdict (JNOV), its granting of a new trial nisi additur to
Respondents Beverly Dale Jolly (Dale) and Brenda Rice Jolly (Brenda), its partial
denial of Appellants' motion for setoff, and its denial of Appellants' motion to quash
subpoenas for their corporate representatives. Among the multitudinous arguments
made in their brief, Appellants assert there was no scientifically reliable evidence
that Dale's workplace exposure to their products proximately caused his
mesothelioma. We affirm.
FACTS/PROCEDURAL HISTORY
From early 1980 to late 1984, Dale worked as a mechanical inspector for Duke
Power Company (Duke) at the Oconee, McGuire, and Catawba nuclear power plants
in South Carolina and North Carolina.1 During this time, his duties regularly brought
him within close proximity to his co-workers' removal of asbestos gaskets from
valves supplied by various manufacturers,2 including Appellants. Appellant Fisher
Controls International LLC sold customized process control valves to Duke, and
Appellant Crosby Valve, LLC sold customized safety valves to Duke. Flanges
connected these valves to pipelines,3 and each flange housed a gasket for the purpose
of providing a tight seal to the connection. Whenever a worn gasket was replaced,
Dale had to verify the number on the replacement gasket by the manufacturer's
manual and document this verification. He also had to verify that the gasket was
torqued correctly.
Dale was so close to the process of removing the worn gaskets that he saw
and breathed in the dust being released from the brushing and grinding of the
gaskets,4 and he wore safety goggles to keep the dust out of his eyes. Although
1
The Oconee plant is in Seneca, South Carolina; the McGuire plant is in
Huntersville, North Carolina; and the Catawba plant is in York, South Carolina.
2
A gasket is "a material (such as rubber) or a part (such as an O-ring) used to make
a joint fluid-tight." Gasket, Merriam-Webster Dictionary, https://www.meriam-
webster.com/dictionary/gasket (last visited August 24, 2021).
3
A flange is "a rib or rim for strength, for guiding, or for attachment to another
object." Flange, Merriam-Webster Dictionary, https://www.meriam-
webster.com/dictionary/flange (last visited August 24, 2021).
4
When an asbestos gasket is new, it is encapsulated, but after normal use of the
product, it deteriorates. Therefore, before a used gasket could be replaced, it had to
Appellants manufactured only the valves and not the gaskets used with these valves,
Appellants kept the gaskets in stock and sold them to Duke upon receiving Duke's
purchase orders and specifications.
In late 1984, Dale left his position as a mechanical inspector and, except for a
two-month break in 2002, continued to work for Duke in other capacities until
December 2015, when he was diagnosed with mesothelioma, a type of lung cancer.
After his diagnosis, Dale underwent extensive treatment for his condition, including
several rounds of chemotherapy, a complicated surgery, a subsequent
hospitalization, and experimental immunotherapy.
On April 25, 2016, Dale and his wife, Brenda, filed the present products
liability action against Appellants and numerous co-defendants, alleging that Dale
was exposed to asbestos emanating from the defendants' products. Respondents
asserted causes of action for, inter alia, negligence, strict liability, breach of implied
warranty, fraudulent misrepresentation, and loss of consortium. Respondents
alleged, inter alia, that (1) Appellants were strictly liable for the harm caused to Dale
by their products because the lack of an adequate warning or adequate use
instructions rendered the design of these products defective and dangerous; (2)
Appellants were negligent in the design of their products and in failing to warn of
the harm resulting from the use of their products; and (3) Appellants breached their
implied warranties that their products were of good and merchantable quality and fit
for their intended use. Prior to trial, Respondents settled their claims against
Appellants' co-defendants for a total sum of $2,270,000. In exchange for these
proceeds, Respondents released all of their present and future claims against the co-
defendants, including any future wrongful death claim.
In July 2017, the circuit court conducted a trial on Respondents' claims against
Appellants. At the conclusion of the trial, the jury awarded $200,000 in actual
damages to Dale for his negligence and breach of warranty claims and $100,000 in
actual damages to Brenda for her loss of consortium claim. The circuit court later
granted Respondents' motion for a new trial nisi additur and increased Dale's award
to $1,580,000 and Brenda's award to $290,000.
The circuit court also granted, in part, Appellants' motion for a setoff of
Respondents' pre-trial settlement proceeds against the increased verdicts for Dale
and Brenda. The circuit court accepted Respondents' stated allocation of the
be removed with grinders and brushes so that the face of the flange it sat against was
clean enough to prevent future leaks.
proceeds, which assigned one-third to Dale's claims; one-third to Brenda's claims;
and one-third for a future wrongful death claim. As to the portion of proceeds
Respondents had allocated to a future wrongful death claim, the circuit court denied
setoff. The circuit court also denied Appellants' motion for a JNOV and issued a
separate written order memorializing its pre-trial denial of Appellants' motion to
quash Respondents' trial subpoenas. Appellants later filed a motion for
reconsideration, which the circuit court denied. This appeal followed.
LAW/ANALYSIS
I. Directed Verdict/JNOV
Appellants challenge the circuit court's denial of their motion for a JNOV on
the following grounds: (1) there was no reliable evidence that Dale's workplace
exposure to their products proximately caused his mesothelioma; (2) Respondents
failed to meet their burden of proof on their claims that were based on a failure to
warn; (3) Respondents failed to meet their burden of proving a design defect for
purposes of their negligence and implied warranty claims; and (4) Respondents
failed to show Appellants deviated from the standard of care. We will address these
grounds in turn.
A motion for a JNOV is "merely a renewal of [a] directed verdict motion."
RFT Mgmt. Co. v. Tinsley & Adams L.L.P., 399 S.C. 322, 331, 732 S.E.2d 166, 171
(2012). "When ruling on a JNOV motion, the [circuit] court is required to view the
evidence and the inferences that reasonably can be drawn therefrom in the light most
favorable to the nonmoving party." Williams Carpet Contractors, Inc. v. Skelly, 400
S.C. 320, 325, 734 S.E.2d 177, 180 (Ct. App. 2012). "This court must follow the
same standard." Id. "If more than one reasonable inference can be drawn or if the
inferences to be drawn from the evidence are in doubt, the case should be submitted
to the jury." Id. (quoting Chaney v. Burgess, 246 S.C. 261, 266, 143 S.E.2d 521,
523 (1965)).
"In considering a JNOV, the [circuit court] is concerned with the existence of
evidence, not its weight," and "neither [an appellate] court, nor the [circuit] court has
authority to decide credibility issues or to resolve conflicts in the testimony or the
evidence." Curcio v. Caterpillar, Inc., 355 S.C. 316, 320, 585 S.E.2d 272, 274
(2003) (second alteration in original) (quoting Reiland v. Southland Equip. Serv.,
Inc., 330 S.C. 617, 634, 500 S.E.2d 145, 154 (Ct. App. 1998), abrogated on other
grounds by Webb v. CSX Transp., Inc., 364 S.C. 639, 615 S.E.2d 440 (2005)). "The
jury's verdict must be upheld unless no evidence reasonably supports the jury's
findings." Id. In other words, a motion for a JNOV "may be granted only if no
reasonable jury could have reached the challenged verdict." Gastineau v. Murphy,
331 S.C. 565, 568, 503 S.E.2d 712, 713 (1998).
A. Proximate Cause
Appellants maintain there was no evidence that Dale's exposure to asbestos
from their products proximately caused his mesothelioma. Specifically, Appellants
argue there was no reliable evidence showing Dale's exposure to their products was
a "substantial cause" of his illness. We disagree.
Whether the theory under which a products liability plaintiff seeks recovery
is negligence, strict liability, or breach of warranty, it is necessary to show "the
product defect was the proximate cause of the injury sustained." Bray v. Marathon
Corp., 356 S.C. 111, 116, 588 S.E.2d 93, 95 (2003).5 "Proximate cause requires
proof of both causation in fact and legal cause, which is proved by establishing
foreseeability." Bray, 356 S.C. at 116–17, 588 S.E.2d at 95. "Ordinarily, the
5
See also S.C. Code Ann. § 15-73-10 (2005) ("One who sells any product in a
defective condition unreasonably dangerous to the user or consumer or to his
property is subject to liability for physical harm caused to the ultimate user or
consumer, or to his property, if (a) The seller is engaged in the business of selling
such a product, and (b) It is expected to and does reach the user or consumer without
substantial change in the condition in which it is sold."); S.C. Code Ann. § 15-73-30(2005) ("Comments to § 402A of the Restatement of Torts, Second, are incorporated
herein by reference thereto as the legislative intent of this chapter."); Small v.
Pioneer Mach., Inc., 329 S.C. 448, 462–63, 494 S.E.2d 835, 842 (Ct. App. 1997)
("A products liability case may be brought under several theories, including strict
liability, warranty, and negligence[, and] regardless of the theory on which the
plaintiff seeks recovery, he must establish three elements: (1) he was injured by the
product; (2) the injury occurred because the product was in a defective condition,
unreasonably dangerous to the user; and (3) that the product at the time of the
accident was in essentially the same condition as when it left the hands of the
defendant." (citation omitted)); Jackson v. Bermuda Sands, Inc., 383 S.C. 11, 15,
677 S.E.2d 612, 614–15 (Ct. App. 2009) ("In addition, liability for negligence also
requires proof that the manufacturer breached its duty to exercise reasonable care to
adopt a safe design."); Small, 329 S.C. at 466, 494 S.E.2d at 844 ("[L]iability may
be imposed upon a manufacturer or seller notwithstanding subsequent alteration of
the product when the alteration could have been anticipated by the manufacturer or
seller . . . ." (emphasis added)).
question of proximate cause is one of fact for the jury[,] and the [circuit court's] sole
function regarding the issue is to inquire whether particular conclusions are the only
reasonable inferences that can be drawn from the evidence." Small, 329 S.C. at 464,
494 S.E.2d at 843.
Further, "[t]o establish medical causation in a product liability case, a plaintiff
must show both general causation and specific causation." Fisher v. Pelstring, 817
F. Supp. 2d 791, 814 (D.S.C. 2011) (quoting In re Bausch & Lomb Inc. Contacts
Lens Solution Prods. Liab. Litig., 693 F. Supp. 2d 515, 518 (D.S.C. 2010)). "General
causation is whether a substance is capable of causing a particular injury or condition
in the general population, while specific causation is whether a substance caused a
particular individual's injury." Id. (quoting In re Bausch & Lomb, 693 F. Supp. 2d
at 518); see also David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74
BROOK. L. REV. 51, 52 (2008). General causation "is generally not an issue in
asbestos litigation" due to the parties' acknowledgment that exposure to asbestos
causes mesothelioma. Tort Law — Expert Testimony in Asbestos Litigation —
District of South Carolina Holds the Every Exposure Theory Insufficient to
Demonstrate Specific Causation Even If Legal Conclusions Are Scientifically Sound.
— Haskins v. 3M Co. (hereinafter Asbestos Litigation), 131 HARV. L. REV. 658, 658
n.4 (2017). However, to show specific causation,
a claimant must do more than simply introduce into
evidence epidemiological studies that show a substantially
elevated risk. A claimant must show that he or she is
similar to those in the studies. This would include proof
that the injured person was exposed to the same substance,
that the exposure or dose levels were comparable to or
greater than those in the studies, that the exposure
occurred before the onset of injury, and that the timing of
the onset of injury was consistent with that experienced by
those in the study.
Merrell Dow Pharms., Inc. v. Havner, 953 S.W.2d 706, 720 (Tex. 1997).
Moreover, when there are multiple possible sources of the plaintiff's exposure
to a toxin, as in the present case, the plaintiff must also show that his exposure to a
particular defendant's product was a "substantial factor" in the development of the
plaintiff's disease. See Bernstein, 74 BROOK. L. REV. at 52 ("[W]ith regard to cases
in which a plaintiff alleges injury after exposure to a toxin from multiple sources, a
given defendant may only be held liable if the plaintiff proves by a preponderance
of the evidence that exposure to that defendant's products was a 'substantial factor'
in causing that injury."). South Carolina has adopted the substantial factor test:
In determining whether exposure is actionable, we adopt
the "frequency, regularity, and proximity test" set forth in
Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156,
1162[–63] (4th Cir. 1986): "To support a reasonable
inference of substantial causation from circumstantial
evidence, 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."
Henderson v. Allied Signal, Inc., 373 S.C. 179, 185, 644 S.E.2d 724, 727 (2007)
(emphases added); see also Lohrmann, 782 F.2d at 1158, 1162 (applying Maryland
law to a pipefitter's products liability claims and restating Maryland's substantial
factor test: "To establish proximate causation in Maryland, the plaintiff must
introduce evidence [that] allows the jury to reasonably conclude that it is more likely
than not that the conduct of the defendant was a substantial factor in bringing about
the result." (emphasis added)).6 While the substantial factor test relaxes the "but-
for" requirement of traditional tort cases,7 it still requires the plaintiff to show "more
than a casual or minimum contact with the product." Lohrmann, 782 F.2d at 1162.8
6
See also Bernstein, 74 BROOK. L. REV. at 55 ("Beyond general and specific
causation, an additional causation issue arises when multiple defendants are
responsible for exposing the plaintiff to a harmful substance. The most common
example is a plaintiff who contracts an asbestos-related disease, such as lung cancer
or asbestosis, and was exposed to asbestos from multiple sources. Assuming the
plaintiff is able to show that his disease was more probably than not caused by
asbestos exposure, he still has to prove that a particular defendant's asbestos-
containing product was a 'proximate cause' of that injury to recover damages from
that defendant.").
7
See Asbestos Litigation, 131 HARV. L. REV. at 658–59 (explaining that courts
presiding over asbestos litigation have departed from traditional tort standards to
overcome evidentiary hurdles inherent in these cases and highlighting the substantial
factor test as a departure from requiring the plaintiff to show that he would not have
developed mesothelioma but for exposure to the defendant's product).
8
Use of the "substantial factor test" has become widespread. See, e.g., Slaughter v.
S. Talc Co., 949 F.2d 167, 171 (5th Cir. 1991) ("The most frequently used test for
causation in asbestos cases is the 'frequency-regularity-proximity' test announced in
[Lohrmann]."); id. n.3 (listing jurisdictions adopting the Lohrmann test).
The evidence in the present case satisfies general causation, specific
causation, and the substantial factor test. At trial, Dale testified that during his four
years as a mechanical inspector, his duties regularly brought him within close
proximity to his co-workers' removal of asbestos gaskets from valves supplied by
various manufacturers, including Appellants. Dale recounted that he regularly and
consistently worked in the vicinity of other workers removing asbestos gaskets from
a "good many" Crosby valves and "[a] lot of" Fisher valves. These asbestos gaskets
were used in not only the flanges connecting the valve to a pipe but also internal
flanges, i.e., flanges within the valve, and some internal gaskets appeared to be used
with other internal components of the valve.
This work occurred at the Oconee, McGuire, and Catawba power stations
whenever each respective station would shut down its operations to change out the
uranium core and perform system maintenance. Each plant had at least one
shutdown per year, and each shutdown would last approximately ten to twelve
weeks. Dale was so close to the removal process that he saw and breathed in the
dust being released from the brushing and grinding of the gaskets, and he wore safety
goggles to keep the dust out of his eyes. Some of the valves were so large that the
flange opening was tall enough for a person to fit in, and the removal process was
time-consuming. David Taylor, Dale's co-worker, testified that there were hundreds
of these valves at the Oconee plant.
Although Appellants manufactured only the valves and not the gaskets used
with these valves, Appellants kept the gaskets in stock and sold them to Duke upon
receiving Duke's purchase orders and specifications. See supra n.5. A major
component of many of these gaskets, as well as replacement gaskets supplied by
Appellants, was asbestos.
Appellants maintain that they sold to Duke only internal gaskets rather than
"flange gaskets," implying that Dale's work around gasket removals was limited to
only those flanges connecting the valve to a pipe. However, the evidence shows at
least some of Appellants' valves had internal flanges that required a gasket.
Therefore, the term "flange gasket" should encompass these internal gaskets that
Appellants undoubtedly sold to Duke. Appellants also maintain that Dale's
testimony regarding his exposure did not include these internal gaskets. However,
Dale testified that his duties included inspecting the work of the valve crews on the
valves' internal components and this required being very close to the crews, even
standing right beside them on many occasions. He also described the crews taking
valves apart and his own verification of the number on the particular replacement
gasket that went into a valve using the valve manufacturer's manual. Further, several
of Duke's purchase orders and Fisher's invoices show Fisher's sale of flange gaskets
to Duke, and there is no obvious indication of whether these gaskets were for internal
flanges or flanges that connect the valve to a pipe.9
The evidence summarized above, by itself, meets Henderson's substantial
factor test.10 In a nutshell, Dale testified that during his four years as a mechanical
inspector, he regularly and consistently worked in close proximity to co-workers
removing asbestos gaskets from a "good many" Crosby valves and "[a] lot of" Fisher
valves and that he breathed the dust, which was visible.11 Additionally, the expert
testimony is sufficient to show both general and specific medical causation.
Respondents presented the testimony of Dr. Arthur Frank, a physician specializing
in occupational medicine;12 Dr. John Maddox, a pathologist; and Dr. Arnold Brody,
a cell biologist. Additionally, the affidavit of Dr. Frank was admitted into evidence.
9
Several Duke purchase orders submitted to Fisher designate asbestos gaskets with
a "flanged fitting."
10
See Henderson, 373 S.C. at 185, 644 S.E.2d at 727 ("In determining whether
exposure is actionable, we adopt the 'frequency, regularity, and proximity test' set
forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162[–63] (4th Cir.
1986): 'To support a reasonable inference of substantial causation from
circumstantial evidence, 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.'").
11
In support of their challenge to the sufficiency of Respondents' causation evidence,
Appellants cite the Fourth Circuit's opinion in Lohrmann, in which the court upheld
the district court's ruling that the plaintiff's asbestos exposure on ten to fifteen
occasions of between one and eight hours duration was insufficient "to raise a
permissible inference that such exposure was a substantial factor in the development
of his asbestosis." 782 F.2d at 1163. However, the present case does not concern
asbestosis, which, according to Dr. Frank, 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.
12
Dr. Frank also has a doctorate in biomedical sciences, and he has been a consultant
to the National Institute for Occupational Safety and Health and an advisor to the
Occupational Safety and Health Administration ("OSHA"). He has testified in
numerous mesothelioma cases nationwide. See, e.g., Rost v. Ford Motor Co., 151
A.3d 1032, 1044 (Pa. 2016). In addition to performing cancer research at the
National Cancer Institute, he participated in epidemiologic studies of asbestos-
exposed populations.
Critically, Dr. Frank stated in his affidavit that his opinions were his "medical
and scientific opinions" and that he was "not offering legal opinions about whether
an exposure is 'significant' or 'substantial' within the meaning of the law." Dr. Frank
also stated, "Evaluation of all available human data provides no evidence for a
threshold or for a 'safe' level of asbestos exposure," and "[t]here is overwhelming,
generally accepted evidence that inhalation of asbestos fibers of any type, from any
source or product, causes mesothelioma."13 Dr. Frank noted that the median latency
period for malignant pleural mesothelioma, with which Dale was diagnosed, is 44.6
years among males.
Dr. Frank also noted that this particular illness is "an aggressive cancer of the
membranes lining the lungs" and cited a study recognizing that all forms of asbestos
cause mesothelioma. He also offered his scientific opinion that every "occupational,
para-occupational, environmental or domestic exposure contributes to the risk of
developing mesothelioma" and the cumulative exposure to asbestos contributes to
the total dose of asbestos. Dr. Frank explained at trial that "cumulative exposure"
means the likelihood of contracting cancer rises with increasing amounts of
exposure. Dr. Frank added, "So[,] if someone has multiple exposures, even to
multiple products, all of them have contributed to make up the cumulative dose. And
for any given individual, it is that cumulative dose that gave them that disease." In
his affidavit, he stated that all of the epidemiological studies he cited use cumulative
exposure when discussing risk. He further stated that even in occupational settings,
13
Dr. Frank explained,
While scientists working for the asbestos industry and
defendants in asbestos product liability lawsuits contend
that one can extrapolate a "no adverse effect level" from
the existing data and/or that massive potency differences
[exist] between hypothetical identical fibers of different
types of asbestos, those opinions are outside of the
scientific mainstream and have been considered and
rejected by independent panels of scientific experts with
no bias or agenda, such as [the International Agency for
Research on Cancer, the Agency for Toxic Substances and
Disease Registries, and the National Institute for
Occupational Safety and Health]."
(emphasis added).
it is usually difficult, if not impossible, to quantify the amount of exposure. Dr.
Frank frequently referenced the epidemiological studies on which he based his
testimony as well as the statements in his affidavit.
After having reviewed Dale's deposition testimony, his medical records, and
other case documents, Dr. Frank testified at trial that the body of literature about the
level of asbestos emitted when asbestos flange gaskets are removed from a valve
indicates that significant levels of asbestos fibers are released when the gasket is
removed using a hand wire brush or an electric-powered grinder. He explained that
a significant level of asbestos fibers that can cause disease cannot be seen with the
naked eye, and therefore, if one can see dust emanating from an asbestos product,
the level is "potentially very high," depending on the percentage of asbestos in the
product. Given Dale's testimony that he saw dust emitted from the removal of
gaskets, Dr. Frank stated the level of asbestos fibers to which Dale was exposed
could have been very high. Dr. Frank quantified this type of exposure by comparing
it to the background or ambient (non-workplace) exposure in urban areas,
concluding that Dale's exposure to the removal of one gasket for a short period of
time would have been in the range of 1 to 99 fibers per cubic centimeter, millions of
times higher than background exposure.
Dr. Frank further testified that even the current permissible exposure limit of
one-tenth of one fiber per cubic centimeter over the course of a year presents a cancer
risk. According to Dr. Frank, some countries allow no exposure, and although rare,
a single day of exposure to asbestos has been documented in epidemiological data
as causing a person to contract mesothelioma. He also stated that a month or less of
exposure has been documented as doubling the risk of lung cancer. Dr. Frank
concluded that during Dale's four years working as a mechanical inspector for Duke,
his regular and frequent exposures, from a distance of ten feet or less, to the removal
of asbestos gaskets from the flange face of valves using wire brushing tools and
scrapers contributed to the cumulative exposure that resulted in Dale's
mesothelioma. He stated that if Dale's exposures "to either Crosby or Fisher valves
had been his only exposure, that . . . would have been sufficient to cause his
mesothelioma."
Dr. John Maddox, a pathologist who has diagnosed over 500 patients with
mesothelioma, cited studies establishing that even individuals in the lowest exposure
category can develop mesothelioma after asbestos exposure. He also cited a study
indicating that individuals in high-exposure occupations had shorter latency periods
than those in occupations with lower exposures, citing mean latency periods for the
high-exposure occupations of insulators and shipyard workers as 29.6 years and 35.4
years, respectively. In comparison, Dale's latency period was 31 years, as he was
diagnosed with mesothelioma in 2015, thirty-one years after his last exposure to the
asbestos gaskets sold by Appellants in late 1984.
After examining Dale's pathology records, Dr. Maddox determined that Dale
had a right pleural malignant mesothelioma, epithelioid type. Dr. Maddox
concluded that Dale's mesothelioma was caused by his cumulative asbestos exposure
throughout his life. Dr. Maddox was asked to give his opinion on whether Dale's
asbestos exposures from 1980 to 1984 caused his mesothelioma based on the
following assumptions: (1) over the course of "three to four years," Dale's exposures
"came from asbestos-containing gaskets and packing used in some but not all of the
valves at a power plant during outages . . . at several plants"; (2) as a regular part of
his job, Dale was close enough to see the dust created by the removal of these
gaskets, "often working one to two feet from" this process; and (3) the level of each
of these exposures was hundreds of thousands of times higher than background
levels. Dr. Maddox testified these exposures were significant, repetitive, high
enough to provide visible dust, and within a reasonable latency period, which is at
least ten years. Dr. Maddox stated that those exposures would be "sufficient to deem
that causative." Subsequently, Dr. Maddox was asked to assume that of those
exposures, Dale had "multiple exposures . . . from [Appellants'] valves in addition
to several other companies' equipment." Based on this assumption, Dr. Maddox
testified that the exposures to Appellants' products "would be significant
contributors to the diagnosis and development of malignant mesothelioma."
Dr. Arnold Brody, a cell biologist, testified concerning how the inhalation of
asbestos causes mesothelioma. Dr. Brody explained that there is a consensus in the
scientific community that all of the commercial varieties of asbestos fibers "cause
all of the asbestos diseases." He also explained that whether an individual develops
a disease from his or her exposure depends on the dose and that individual's personal
susceptibility based on the response of his or her genetic defenses, and for
mesothelioma, there is no known threshold or level above background levels that is
known to be "safe or [that] will not cause mesothelioma."
In sum, the above evidence showed that human inhalation of asbestos fibers
of any type can cause mesothelioma, establishing general causation.14 This evidence
also showed that (1) Dale worked in closed proximity to the asbestos released from
14
See Fisher, 817 F. Supp. 2d at 814 ("General causation is whether a substance is
capable of causing a particular injury or condition in the general population . . . ."
(quoting In re Bausch & Lomb, 693 F. Supp. 2d at 518)).
gaskets sold by Appellants; (2) these exposures, each one being at least 1 to 99 fibers
per cubic centimeter per gasket (millions of times higher than background exposure),
occurred on a regular basis for an extended period of time, 1980 to 1984; (3) even
the current permissible exposure limit of one-tenth of one fiber per cubic centimeter
over the course of a year presents a cancer risk; (4) Dale's latency period was 31
years; (5) the median latency period for malignant pleural mesothelioma, with which
Dale was diagnosed, is 44.6 years among males; and (6) Dr. Maddox found the
latency period for Dale's development of mesothelioma after exposure to Appellants'
gaskets to be reasonable. Therefore, this evidence also established specific causation
and satisfied the elements of the substantial factor test.15
Appellants argue Respondents' causation evidence did not meet the
substantial factor test because their experts "did not provide scientifically reliable
evidence of either the amount of asbestos to which Dale was exposed from Crosby
or Fisher products or the threshold exposure to asbestos above which he had an
increased risk of developing mesothelioma." Appellants maintain that the expert
testimony is unreliable because it employed the "each and every exposure" theory of
causation. We disagree with Appellants' characterization of the expert testimony.
We also disagree with Appellants' implication that the substantial factor test requires
a precise quantification of the number of asbestos fibers to which Dale was exposed
and a "threshold exposure." We will address these matters in turn.
The "each and every exposure" theory espouses the view that "'each and every
breath' of asbestos is substantially causative of mesothelioma." See Rost, 151 A.3d
at 1044 ("[E]xpert testimony based upon the notion that 'each and every breath' of
15
See Havner, 953 S.W.2d at 720 ("To raise a fact issue on causation and thus to
survive legal sufficiency review, a claimant must do more than simply introduce into
evidence epidemiological studies that show a substantially elevated risk. A claimant
must show that he or she is similar to those in the studies. This would include proof
that the injured person was exposed to the same substance, that the exposure or dose
levels were comparable to or greater than those in the studies, that the exposure
occurred before the onset of injury, and that the timing of the onset of injury was
consistent with that experienced by those in the study"); Henderson, 373 S.C. at 185,
644 S.E.2d at 727 ("In determining whether exposure is actionable, we adopt the
'frequency, regularity, and proximity test' set forth in Lohrmann v. Pittsburgh
Corning Corp., 782 F.2d 1156, 1162[–63] (4th Cir. 1986): 'To support a reasonable
inference of substantial causation from circumstantial evidence, 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.'").
asbestos is substantially causative of mesothelioma will not suffice to create a jury
question on the issue of substantial factor causation."); Betz v. Pneumo Abex, LLC,
44 A.3d 27, 31 (Pa. 2012) (noting the report of plaintiffs' causation expert concluded
that each exposure is "a substantial contributing factor in the development of the
disease that actually occurs" and did not assess the plaintiffs' individual exposure
history "as this was thought to be unnecessary, given the breadth of the any-exposure
theory" (emphasis removed)); see also Yates v. Ford Motor Co., 113 F. Supp. 3d
841, 846 (E.D.N.C. 2015) ("Also referred to as 'any exposure' theory, or 'single fiber'
theory, it represents the viewpoint that, because science has failed to establish that
any specific dosage of asbestos causes injury, every exposure to asbestos should be
considered a cause of injury."). A significant number of jurisdictions have found the
"each and every exposure" theory to be unreliable. See, e.g., McIndoe v. Huntington
Ingalls Inc., 817 F.3d 1170, 1177 (9th Cir. 2016); Martin v. Cincinnati Gas & Elec.
Co., 561 F.3d 439, 443 (6th Cir. 2009); Yates, 113 F. Supp. 3d at 846 (listing
jurisdictions); In re New York City Asbestos Litig., 48 N.Y.S.3d 365, 370 (2017);
Betz, 44 A.3d at 53 (stating that the trial court "was right to be circumspect about the
scientific methodology underlying the any-exposure opinion. [The court] . . . was
unable to discern a coherent methodology supporting the notion that every single
fiber from among, potentially, millions is substantially causative of disease").
Respondents distinguish between the "each and every exposure" theory and
the cumulative dose theory. They maintain that their experts relied on the
cumulative dose theory and that their reliance on basic science in reaching their
opinion is not the equivalent of testifying that "each and every exposure" was a
substantial factor in causing Dale's mesothelioma. We agree. Respondents explain,
"Even though the experts testified that all exposures contribute to the cumulative
dose that causes disease, that does not mean that every exposure rises to the level of
a substantial factor." (first emphasis added). Respondents note that this distinction
was also made in Rost, a case in which Dr. Frank testified.
In Rost, the Supreme Court of Pennsylvania concluded,
We must agree with the Rosts that Ford has confused or
conflated the "irrefutable scientific fact" that every
exposure cumulatively contributes to the total dose (which
in turn increases the likelihood of disease), with the legal
question under Pennsylvania law as to whether particular
exposures to asbestos are "substantial factors" in causing
the disease. It was certainly not this [c]ourt's intention, in
[its precedent], to preclude expert witnesses from
informing juries about certain fundamental scientific facts
necessary to a clear understanding of the causation process
for mesothelioma, even if those facts do not themselves
establish legal (substantial factor) causation. In this case,
while Dr. Frank clearly testified that every exposure to
asbestos cumulatively contributed to Rost's development
of mesothelioma, he never testified that every exposure to
asbestos was a "substantial factor" in contracting the
disease.
Instead, by way of, inter alia, the lengthy hypothetical that
detailed the entirety of Rost's exposure to asbestos-
containing Ford products while at Smith Motors, Dr.
Frank testified that Rost's actual exposures to asbestos at
Smith Motors over three months was substantially
causative of his mesothelioma. . . . . In other words, Dr.
Frank did not testify that a single breath of asbestos while
at Smith Motors caused Rost's mesothelioma, but rather
that the entirety of his exposures during the three months
he worked there caused his disease. In this regard, Dr.
Frank stressed that, unlike with some other asbestos-
related diseases (e.g., asbestosis), mesothelioma may
develop after only relatively small exposures.
Id. at 1045–46.16 Rost is particularly persuasive given that Dr. Frank testified in that
case and his testimony was similar to his testimony in the present case. Moreover,
16
See also Bobo v. Tenn. Valley Auth., 855 F.3d 1294, 1301 (11th Cir. 2017) (holding
that the district court did not abuse its discretion in admitting expert testimony
stating there is no evidence that there is a threshold level of exposure below which
there is zero risk of mesothelioma and that all "significant" exposures to asbestos
"contribute to cause mesothelioma"); id. (stating that the defendant mischaracterized
the opinion of the plaintiff's expert "as essentially that 'any exposure' to asbestos is
a substantial factor in causing mesothelioma, which it says makes his opinion
scientifically unreliable. That is not what he said"); id. ("While [the plaintiff's expert]
testified that all significant exposures to asbestos contribute to causing
mesothelioma, he did not say that any exposure to asbestos is a substantial factor in
causing mesothelioma, or even that every significant exposure causes it."); id.(stating that the expert's opinion was also based on an extensive knowledge of the
facts in the case and was supported by scientific literature").
the other expert testimony on medical causation, including the application of
scientific standards to Dale's occupational exposure history, was compelling.
Appellants assert that Respondents' distinction between the each and every
exposure theory and the cumulative dose theory is artificial. They also assert that
the presentation of the cumulative dose theory conflicts with the
Henderson/Lohrmann substantial factor standard. We disagree with both assertions.
Stating that a certain exposure contributes to an individual's cumulative dose does
not espouse the view that "each and every breath" of asbestos is "substantially"
causative of mesothelioma or imply that one exposure meets the legal requirement
for causation.17 We view the testimony concerning cumulative dose as background
17
At oral argument, Appellants alleged that under cross-examination, Dr. Frank
testified each of approximately 60 exposures was a substantial cause of Dale's
mesothelioma. We disagree with Appellant's characterization of Dr. Frank's
testimony. Counsel attempted to elicit an admission from Dr. Frank that he had
earlier stated "any and all exposures [Dale] may have had from any product was a
substantial cause of . . . his mesothelioma." Dr. Frank replied that he had not used
the phrase "any and all" but had stated all of Dale's exposures from all products
containing all fiber types were a substantial cause. It is clear that Dr. Frank rejected
the "any" characterization and was clarifying that collectively, all of the exposures
substantially caused Dale's mesothelioma.
Counsel then asked if these exposures would include products from General
Electric, and Dr. Frank replied, "If they contained asbestos and if he was exposed,
yes." Counsel then asked the same question as to numerous other businesses, one
by one, to which Dr. Frank gave the same answer. Dr. Frank took care to clarify this
answer part of the way through counsel's laundry list, stating, "Again, if he had
exposures to such a product containing asbestos, it would have contributed to his
cumulative exposure." It is clear that during this line of questioning, Dr. Frank was
indicating Dale's collective exposures included products from the businesses
mentioned by counsel if they contained asbestos and Dale was exposed to them.
Dr. Frank later stated that Dale's exposure to the product of one business
would be "the contributing cause." We view his use of the article "the" as
inconsistent with the term "contributing" and, thus, we attribute no significance to
his use of this article. Subsequently, when asked about a product from another
business, Dr. Frank stated, "If he was exposed to asbestos-containing John Crane
packing, it would have been, in my opinion, a substantial contributing cause to his
mesothelioma." Although he included the term "substantial" in this response, it was
information essential for the jury's understanding of medical causation, which must
be based on science. We do not interpret this presentation as an attempt to supplant
the Henderson/Lohrmann test.
Further, Dr. Frank supplemented this background information with his
assessment of the probable level of exposure, 1 to 99 fibers per cubic centimeter, for
each asbestos gasket removal and replacement Dale inspected. He further explained
that this level is millions of times higher than background exposure and that the
frequency of Dale's exposures over a four-year period accumulated to a level that
could be considered a specific medical cause of Dale's mesothelioma. In other
words, Respondents' experts were guided by the facts specific to Dale's exposure to
Appellants' products in forming their opinions concerning causation. We note that
the following factors on which Dr. Frank stated he routinely relies in examining a
specific case are similar to the Henderson factors:
In determining the relative contribution of any exposures
to asbestos above background levels, it is important to
consider a number of factors, including: the nature of
exposure, the level of exposure and the duration of
exposure, whether a product gives off respirable asbestos
fibers, the level of exposure, whether a person was close
to or far from the source of fiber release, how frequently
the exposure took place and how long the exposure lasted,
whether engineering or other methods of dust control were
in place, and whether respiratory protection was used.
(emphases added). Likewise, the factors on which Dr. Maddox relied in forming his
opinion overlap with the Henderson factors as they included how the exposure levels
were measured, the standard that the exposure should be repetitive, dose response,
and the exposures falling within a reasonable latency period.
qualified by the term "contributing" and, therefore, his response as a whole conveyed
to the jury the mere contribution of Dale's exposure to this particular product to his
cumulative dose. We decline to associate this isolated reference to the term
"substantial" with either an adoption of the each and every exposure theory or a
rejection of the legal requirement that a plaintiff's exposure to a particular
defendant's product must be frequent, especially given Dr. Frank's previous
statements in his affidavit that his opinions were medical and scientific and that he
was not offering opinions about whether an exposure is substantial within the
meaning of the law.
Appellants next argue that in addition to their valves, valves made by ten
additional manufacturers were located where Dale worked and this decreased the
likelihood that their own products caused Dale's mesothelioma. Yet, this argument
is based on the faulty premise that a "but-for" standard of causation applies to
mesothelioma cases when all Lohrmann requires is substantial causation shown by
frequent, regular, and proximate exposure to the defendant's products. See
Henderson, 373 S.C. at 185, 644 S.E.2d at 727 ("In determining whether exposure
is actionable, we adopt the 'frequency, regularity, and proximity test' set forth in
Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162[–63] (4th Cir. 1986):
'To support a reasonable inference of substantial causation from circumstantial
evidence, 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.'" (emphases added)); Asbestos Litigation, 131 HARV. L. REV. at 662
(analyzing an unpublished opinion of the United States District Court, District of
South Carolina, and stating "although the court wrapped its conclusion in substantial
factor language, it applied the but-for standard of specific causality—the same
standard whose evidentiary difficulties elicited modifications of the test in the first
place").
The substantial factor test formulated in Lohrmann merely requires a plaintiff
to show "more than a casual or minimum contact with the product" of the defendant
rather than a comparison of these exposures to the exposures to other defendants'
products. 782 F.2d at 1162; see also Rost, 151 A.3d at 1050–51 ("[I]n asbestos
products liability cases, evidence of 'frequent, regular, and proximate' exposures to
the defendant's product creates a question of fact for the jury to decide. This [c]ourt
has never insisted that a plaintiff must exclude every other possible cause for his or
her injury, and in fact, we have consistently held that multiple substantial causes
may combine and cooperate to produce the resulting harm to the plaintiff."
(emphases added) (footnote omitted) (citation omitted)).
Based on the foregoing, we reject Appellants' argument that Respondents'
evidence of substantial causation was insufficient. See Duckett ex rel. Duckett v.
Payne, 279 S.C. 94, 96, 302 S.E.2d 342, 343 (1983) ("[T]he appellant carries the
burden of convincing this [c]ourt that the [circuit] court erred."); see also Curcio,
355 S.C. at 320, 585 S.E.2d at 274 ("In considering a JNOV, the [circuit court] is
concerned with the existence of evidence, not its weight."); id. ("The jury's verdict
must be upheld unless no evidence reasonably supports the jury's findings.");
Williams Carpet Contractors, 400 S.C. at 325, 734 S.E.2d at 180 ("When ruling on
a JNOV motion, the [circuit] court is required to view the evidence and the
inferences that reasonably can be drawn therefrom in the light most favorable to the
nonmoving party."); id. ("This court must follow the same standard."); id. ("If more
than one reasonable inference can be drawn or if the inferences to be drawn from the
evidence are in doubt, the case should be submitted to the jury." (quoting Chaney v.
Burgess, 246 S.C. 261, 266, 143 S.E.2d 521, 523 (1965))); Small, 329 S.C. at 464,
494 S.E.2d at 843 ("Ordinarily, the question of proximate cause is one of fact for the
jury and the [circuit court's] sole function regarding the issue is to inquire whether
particular conclusions are the only reasonable inferences that can be drawn from the
evidence."); cf. Est. of Mims v. S.C. Dep't of Disabilities & Special Needs, 422 S.C.
388, 403, 811 S.E.2d 807, 815 (Ct. App. 2018) (holding multiple inferences that
could be drawn from the evidence precluded summary judgment and required a jury
to determine the question of causation).
To the extent Appellants challenge the admissibility of Respondents' experts'
testimony on the ground that it was unreliable,18 they have failed to show any
significant part of the testimony that could be reasonably characterized as espousing
the "each and every exposure" theory. Further, the cumulative dose theory on which
Respondents' experts relied easily meets the standard for reliability set forth in State
v. Council, 335 S.C. 1, 515 S.E.2d 508 (1999). See id. at 20, 515 S.E.2d at 518("[T]he proper analysis for determining admissibility of scientific evidence is now
under the SCRE. When admitting scientific evidence under Rule 702, SCRE, the
[circuit court] must find the evidence will assist the trier of fact, the expert witness
is qualified, and the underlying science is reliable."); id. at 19, 515 S.E.2d at 517(setting forth four of "several factors" a court should examine in considering the
admissibility of scientific evidence: "(1) the publications and peer review of the
technique; (2) prior application of the method to the type of evidence involved in the
case; (3) the quality control procedures used to ensure reliability; and (4) the
consistency of the method with recognized scientific laws and procedures").
18
Technically, the circuit court's ruling on this issue may be considered the law of
the case. In its order denying Appellants' JNOV motion, the circuit court concluded
that the testimony of Respondents' experts was admissible, and Appellants have not
explicitly appealed that ruling. See Rule 208(b)(1)(B), SCACR ("Ordinarily, no
point will be considered [that] is not set forth in the statement of the issues on
appeal."); Atl. Coast Builders & Contractors, LLC v. Lewis, 398 S.C. 323, 329, 730
S.E.2d 282, 285 (2012) ("[A]n unappealed ruling, right or wrong, is the law of the
case."). However, we address the issue out of an abundance of caution. See Toal et
al., Appellate Practice in South Carolina 208 (3d ed. 2016) ("[W]here an issue is not
specifically set out in the statement of issues, the appellate court may nevertheless
consider the issue if it is reasonably clear from the appellant's arguments.").
As to items (1) and (2) of the Council factors, Dr. Frank's affidavit indicates
that scientists have analyzed cumulative asbestos exposure in order to ascribe
causation in numerous peer-reviewed, published epidemiological studies, case
series, and case reports. These publications "reinforce the scientific consensus that
each occupational and para-occupational exposure to asbestos contributes to the
cumulative lifetime asbestos exposure and increases a person's risk of developing
mesothelioma." (emphasis added). As to item (3), Dr. Frank and his peers have not
limited their analyses to the epidemiology of a substance but have also considered
other scientific data, such as genetics, host factors, immunologic status, the
relationship between risk and the level of exposure, and the dose-response principle.
He stated,
It is precisely because scientists and physicians understand
the limitations of epidemiology and how certain factors
can bias studies toward a lack of statistical significance or
finding of a point estimate of no increased risk[] that we
look at the epidemiology of a substance along with the
other scientific data described above. Each
epidemiological study must be evaluated for its strengths
and weaknesses, and decisions about cause and effect
should only be made on reliable data.
(emphasis added).
As to item (4), Dr. Frank stated that he follows the same weight-of-the-
evidence methodology used by the International Agency for Research on Cancer,
the World Health Organization, the National Institute for Occupational Safety and
Health, and the Agency for Toxic Substances and Disease Registries in reaching his
conclusions about the health effects of asbestos. He explained that the duties of
these organizations are to evaluate the science and not to set policy. He also
explained how the cumulative dose theory is consistent with the classic dose-
response principle but noted that occupational and environmental epidemiology "is
a blunt instrument and is not, in most cases, well suited to examining precise dose-
response relationships." (emphasis added). Again, Dr. Frank's affidavit indicated
that the cumulative dose theory has been analyzed in numerous epidemiological
studies, case series, and case reports and "[w]hen examining the question of
causation of sentinel diseases like mesothelioma[,]19 the scientific community
recognizes case reports and case series reports are useful and valid tools."
Moreover, Appellants have also failed to show there is a reasonable
probability the jury's verdict was influenced by any testimony that could be
reasonably characterized as espousing the each and every exposure theory. See
Fields v. Reg'l Med. Ctr. Orangeburg, 363 S.C. 19, 26, 609 S.E.2d 506, 509 (2005)
("To warrant reversal based on the admission or exclusion of evidence, the appellant
must prove both the error of the ruling and the resulting prejudice, i.e., that there is
a reasonable probability the jury's verdict was influenced by the challenged evidence
or the lack thereof."); id. at 31–34, 609 S.E.2d at 512–13 (holding the court of
appeals erred in concluding the plaintiff showed prejudice from the exclusion of
certain testimony because the plaintiff did not show a reasonable probability the jury
was influenced by the exclusion). Nothing in the testimony of Respondents' experts
indicates they were seeking to substitute their opinions on the science underlying
mesothelioma for the legal standard on causation. To the contrary, Dr. Frank's
affidavit explicitly stated that his opinions were his "medical and scientific opinions"
and that he was "not offering legal opinions about whether an exposure is 'significant'
or 'substantial' within the meaning of the law."
With the clear guidance from the circuit court's instructions on the law, which
included the Henderson/Lohrmann standard, the jury was capable of distinguishing
between the science-based testimony concerning medical causation and the legal
standard for establishing causation in the face of multiple possible sources of the
plaintiff's exposure. Therefore, the presence of any questionable language in
isolated portions of the expert testimony paled in comparison to Dale's testimony
and his experts' response to specific fact-based hypothetical questions. See supra.
Based on the foregoing, the circuit court acted well within its discretion in
admitting the experts' testimony into evidence. See Haselden v. Davis, 341 S.C. 486,
497, 534 S.E.2d 295, 301 (Ct. App. 2000) ("The admissibility of evidence is within
the [circuit] court's discretion. Absent a showing of a clear abuse of that discretion,
the [circuit] court's admission or rejection of evidence is not subject to reversal on
appeal." (footnote omitted)).20
19
According to Dr. Frank's affidavit, a sentinel event is "a case of disease that, when
it appears, signals the need for action."
20
Appellants' additional argument that the expert testimony should have been
excluded under Rule 403, SCRE is not preserved for review. The circuit court did
not rule on this issue in its order addressing Appellants' post-trial motions, and
B. Failure to Warn
As an additional ground for challenging the circuit court's denial of their
JNOV motion, Appellants assert Respondents failed to meet their burden of proof
on their failure-to-warn claims because (1) Appellants were protected by the
sophisticated intermediary doctrine and (2) the danger of asbestos gaskets was open
and obvious. We will address these two grounds in turn, but first we address
Appellants' interjection of the burden of proof into their assignment of error. "In
considering a JNOV, the [circuit court] is concerned with the existence of evidence,
not its weight." Curcio, 355 S.C. at 320, 585 S.E.2d at 274. "The jury's verdict must
be upheld unless no evidence reasonably supports the jury's findings." Id. In other
words, neither the circuit court nor this court may re-weigh the evidence in
determining whether it is necessary to set aside a jury's verdict.
We will now address Appellants' two grounds for challenging the jury's
verdict on Respondents' failure-to-warn claims.
Reasonable Reliance/Sophisticated Intermediary Doctrine
This court first adopted the sophisticated intermediary doctrine in Bragg v.
Hi-Ranger, Inc. when it upheld the following jury instruction given by the circuit
court:
[A] manufacturer has no duty to warn of potential risks or
dangers inherent in a product if the product is distributed
to what we call a learned intermediary or distributed to a
sophisticated user who might be in a position to
understand and assess the risks involved, and to inform the
ultimate user of the risks, and to, thereby, warn the
ultimate user of any alleged inherent dangers involved in
Appellants did not subsequently seek the circuit court's ruling on this issue in a Rule
59(e) motion. See, e.g., Noisette v. Ismail, 304 S.C. 56, 58, 403 S.E.2d 122, 124
(1991) (noting the circuit court did not explicitly rule on a particular argument, the
appellant failed to show it made a Rule 59(e) motion on this ground, and, therefore,
this court should not have addressed the argument); West v. Newberry Elec. Coop.,
357 S.C. 537, 543, 593 S.E.2d 500, 503 (Ct. App. 2004) ("This issue was neither
addressed by the [circuit court] in the final order nor mentioned in the subsequent
Rule 59(e), SCACR, motion. As such, it is not preserved for review by this court.").
the product. Simply stated, the sophisticated user defense
is permitted in cases involving an employer who was
aware of the inherent dangers of a product which . . . the
employer purchased for use in his business. Such an
employer has a duty to warn his employees of the dangers
of the product.
319 S.C. 531, 549, 462 S.E.2d 321, 331–32 (Ct. App. 1995). This court concluded
that the circuit court correctly charged the jury and the charge "was an accurate
recitation of the law." Id. at 551, 462 S.E.2d at 332.
"The [sophisticated intermediary] doctrine originated in the Restatement
Second of Torts, section 388, comment n, . . . which addresses when warnings to a
party in the supply chain are sufficient to satisfy the supplier's duty to warn." Webb
v. Special Elec. Co., 370 P.3d 1022, 1033 (Cal. 2016). "The Restatement drafters'
most recent articulation of the sophisticated intermediary doctrine appears in the
Restatement Third of Torts, Products Liability, section 2, comment i, at page 30. The
drafters intended this comment to be substantively the same as section 388, comment
n, of the Restatement Second of Torts." Webb, 370 P.3d at 1034. Comment i states,
in pertinent part:
There is no general rule as to whether one supplying a
product for the use of others through an intermediary has
a duty to warn the ultimate product user directly or may
rely on the intermediary to relay warnings. The standard
is one of reasonableness in the circumstances. Among the
factors to be considered are the gravity of the risks posed
by the product, the likelihood that the intermediary will
convey the information to the ultimate user, and the
feasibility and effectiveness of giving a warning directly
to the user.
Restatement (Third) of Torts: Prods. Liab. § 2, cmt. i (Am. Law. Inst. 1998)
(emphases added).
In the present case, the circuit court instructed the jury on the doctrine and
advised the jury that it was an affirmative defense for which Appellants bore the
burden of proof.21 The court later upheld the jury's verdict for Respondents,
concluding (1) Appellants failed to show they knew Duke was aware or should have
been aware of the danger from asbestos gaskets; (2) there was no evidence
Appellants relied on Duke to warn its employees of the dangers of asbestos gaskets;
and (3) Duke believed asbestos gaskets did not release fibers when disturbed and,
thus, considered them to be harmless.22
Appellants contend they reasonably relied on Duke to comply with
occupational safety laws, citing Dr. Frank's testimony admitting that OSHA
regulations in effect from 1980 to 1984 permitted a certain level of asbestos exposure
in the workplace. Appellants also cite to the OSHA regulation requiring employers
to take certain precautions when an employee will be exposed to asbestos dust.
However, it is not enough to show that the supplier's reliance would have been
reasonable—the supplier must also show that it actually relied on the intermediary
to convey warnings to end users. See Webb, 370 P.3d at 1036 ("To establish a
defense under the sophisticated intermediary doctrine, a product supplier must show
21
See Pike v. S.C. Dep't of Transp., 343 S.C. 224, 231, 540 S.E.2d 87, 91 (2000)
(stating that the party pleading an affirmative defense has the burden of proving it).
22
A November 21, 1984 script for an asbestos safety course provided to employees
by Duke's construction department indicates Duke knew of the dangers of asbestos
insulation but was unaware of the dangers of removing asbestos gaskets from a
valve:
Actually, asbestos is used very little in Duke Construction
today, mostly to insulate electrical cabinets and pack
valves, and it is used in gasket material. Even so, the
asbestos in these jobs is bonded, which means it produces
virtually no dust.
In the past, however, nonbonded asbestos has been used
for insulation throughout the Duke system. So there's a
good chance asbestos dust is present wherever old
insulation is being removed.
The script is consistent with the testimony of Duke employee David Taylor, who
indicated that Duke distinguished between asbestos insulation, which it warned
employees about when Dale worked as a mechanical inspector, and the asbestos in
gaskets, which Duke failed to warn employees about until the late 1980s or early
1990s.
not only that it warned or sold to a knowledgeable intermediary, but also that it
actually and reasonably relied on the intermediary to convey warnings to end users.
This inquiry will typically raise questions of fact for the jury to resolve unless critical
facts establishing reasonableness are undisputed." (emphasis added)).
Here, Fisher's corporate representative testified that the reason Fisher did not
warn anyone about the dangers of asbestos gaskets was because the company did not
consider them to be a health risk. Crosby's corporate representative also indicated
that Crosby did not consider the gaskets in their valves to be dangerous. This belies
Appellants' claims that they relied on Duke to warn Dale of the dangers of asbestos
gaskets. Therefore, the circuit court properly left within the province of the jury the
question of whether Appellants actually relied on Duke to warn Dale about their
gaskets. See Webb, 370 P.3d at 1036 (stating that a product supplier "must show not
only that it warned or sold to a knowledgeable intermediary, but also that it actually
and reasonably relied on the intermediary to convey warnings to end users. This
inquiry will typically raise questions of fact for the jury to resolve unless critical
facts establishing reasonableness are undisputed." (emphases added)).
Appellants also maintain that Duke actually warned its employees of the
dangers of asbestos. However, the evidence indicates that when Dale worked as a
mechanical inspector, Duke distinguished between asbestos insulation and asbestos
gaskets and considered the latter to be harmless. See supra n.22. It was not until the
late 1980s or early 1990s that Duke began warning its employees of the dangers of
dust from asbestos gaskets. By then, Duke instructed its employees to wear a
respirator or mask and to spray down a gasket with water before removing it from a
flange.
Finally, Appellants contend they could not have reasonably warned Dale of
the danger associated with their gaskets because Dale would not have seen any
warning labels on the gaskets when his co-workers began grinding them up.
However, Dale would have seen a warning on a replacement gasket when verifying
the number on that gasket. This would have alerted him to the need to take
precautions during future gasket removals. Further, Appellants do not address the
feasibility of placing a warning on the outside of the valve. Instead, they argue that
Respondents did not raise this possibility at trial and have not shown that a warning
on the valve would have been effective or feasible. Yet, Respondents did not have
this burden at trial. Rather, it was Appellants' burden to show that they met the
standard for the sophisticated intermediary doctrine. See Pike, 343 S.C. at 231, 540
S.E.2d at 91; see also Webb, 370 P.3d at 1034 ("Because the sophisticated
intermediary doctrine is an affirmative defense, the supplier bears the burden of
proving that it adequately warned the intermediary, or knew the intermediary was
aware or should have been aware of the specific hazard, and reasonably relied on the
intermediary to transmit warnings.").
Moreover, on appeal, it is Appellants' burden to convince this court that the
circuit court erred in upholding the jury's verdict as to this defense. See Duckett, 279
S.C. at 96, 302 S.E.2d at 343. Because Appellants themselves have not shown that
a warning on the outside of the valve would have been ineffective or infeasible, we
reject their argument that they could not have reasonably warned Duke employees
of the danger associated with their gaskets.
Based on the foregoing, the circuit court properly upheld the jury's verdict as
to the sophisticated intermediary doctrine.
Open and Obvious Danger
Next, Appellants assert that the danger of asbestos gaskets was open and
obvious and Dale admitted he knew asbestos was dangerous. Therefore, Appellants
argue, they were entitled to a JNOV on Respondents' failure-to-warn claims. We
disagree.
Appellants rely on Moore v. Barony House Rest., LLC, 382 S.C. 35, 41–42,
674 S.E.2d 500, 504 (Ct. App. 2009) for the proposition that a seller has no duty to
warn of an "open and obvious" danger created by its products or a danger that the
product's users generally recognize. However, "[w]hen reasonable minds may differ
as to whether the risk was obvious or generally known, the issue is to be decided by
the trier of fact." Restatement (Third) of Torts: Prods. Liab. § 2, cmt. j (1998). Here,
the record shows that during Dale's employment as a mechanical inspector, Duke
distinguished between asbestos insulation, which it warned employees about, and
asbestos gaskets, which Duke considered harmless. Further, although Dale admitted
he was warned to avoid areas where old asbestos insulation was being removed, he
indicated that he and his co-workers were not made aware of the full extent of the
potential for harm from asbestos exposure. Therefore, reasonable minds may differ
as to whether the danger of developing cancer from exposure to asbestos gaskets
was obvious or generally recognized by Duke employees.
There is no evidence that any safety information about asbestos gaskets was
provided to any employees before safety course instructors received a teaching guide
in September 1984, nearly four years after Dale first became a mechanical inspector,
and that information merely stated that asbestos gaskets produced virtually no dust.
According to David Taylor, Duke did not warn employees about the danger
associated with asbestos gaskets until the late 1980s or early 1990s, after Dale was
no longer a mechanical inspector. Taylor testified that by the late 1980s, Duke
required employees involved with the removal of gaskets from valves to wear a
respirator and to wet the gasket before removal to minimize the liberation of the dust.
Taylor also testified that the only way a typical employee could know that a
particular gasket he or she was working with was made of asbestos was if its
packaging had been labeled as containing asbestos. Therefore, a reasonable juror
could have inferred that the danger associated with the removal of asbestos gaskets
from valves was one that was not obvious to Dale or generally recognized by other
Duke employees involved with that process before the late 1980s.
We acknowledge Dale's testimony that his training as a mechanical inspector
included distinguishing asbestos gaskets from other types of gaskets and that he
could see the dust produced by the removal of certain gaskets from valves. Thus, a
juror could draw a reasonable inference that Dale was aware of some health risk
posed by the dust generated when a co-worker removed an asbestos gasket from a
valve. Yet, in the light most favorable to Dale, an equally reasonable inference from
the evidence is that Dale had no clear or timely warning that his proximity to the
removal of gaskets from Appellants' valves would cause him to develop
mesothelioma. Dale testified that Duke had designated "respirator zones" that
employees were prohibited from entering without a respirator, employees were
accustomed to receiving a specific directive to wear a respirator for a specific job,
and they could not obtain a respirator without first receiving such a directive. During
the years Dale worked as a mechanical inspector, employees in proximity to the
removal of asbestos gaskets from valves were not directed to wear a respirator.
Appellants also argue the only reasonable inferences from the evidence are
that Dale did not heed Duke's warnings about asbestos and, therefore, would not
have heeded a warning from Appellants. Appellants contend that Dale "made clear
during his testimony that he knew about the hazards of asbestos . . . and that he in
fact did not heed warnings from Duke and continued to work around Fisher and
Crosby valves despite his knowledge of the alleged hazards." We disagree with
Appellants' characterization of the testimony in question. That testimony is
consistent with the other evidence indicating that from 1980 to 1984, Duke did not
warn its employees of the dangers of asbestos gaskets. See supra. Further, we do
not interpret the testimony as an admission that Dale knowingly placed himself
within proximity of dust from asbestos insulation. Finally, even if the testimony,
combined with the other testimony concerning Dale's training, would allow a
reasonable juror to infer that Dale did not heed Duke's warning about asbestos in
general, this is not the only reasonable inference.
Based on the foregoing, the circuit court properly upheld the jury's verdict on
Respondents' failure-to-warn claims. See Restatement (Third) of Torts: Prods. Liab.
§ 2, cmt. j ("When reasonable minds may differ as to whether the risk was obvious
or generally known, the issue is to be decided by the trier of fact.").
C. Design Defect
Next, Appellants assert there was no evidence of a reasonable alternative
design for the asbestos gaskets used in their valves and, thus, they were entitled to a
JNOV on Respondents' negligence and implied warranty claims. We disagree.
"A product can be defective because of a flaw in its design." Madden v. Cox,
284 S.C. 574, 579, 328 S.E.2d 108, 112 (Ct. App. 1985). "Liability for a design
defect may be based on negligence, strict tort, or warranty." Id. "In an action based
on strict tort or warranty, plaintiff's case is complete when he has proved the product,
as designed, was in a defective condition unreasonably dangerous to the user when
it left the control of the defendant, and the defect caused his injuries." Id. at 579–
80, 328 S.E.2d at 112 (emphasis added). "Liability for negligence requires, in
addition to the above, proof that the manufacturer breached its duty to exercise
reasonable care to adopt a safe design." Id. at 580, 328 S.E.2d at 112. "This burden
may be met by showing that the manufacturer was aware of the danger and failed to
take reasonable steps to correct it." Id.
In analyzing design defect claims, South Carolina courts apply the "risk-
utility" test, which weighs the danger associated with the product's use against its
utility. See Bragg, 319 S.C. at 543, 462 S.E.2d at 328 ("[A] product is unreasonably
dangerous and defective if the danger associated with the use of the product
outweighs the utility of the product."); id. at 544, 462 S.E.2d at 328 ("[I]n South
Carolina[,] we balance the utility of the risk inherent in the design of the product
with the magnitude of the risk to determine the reasonableness of the manufacturer's
action in designing the product."). In Branham v. Ford Motor Company, our
supreme court refined the risk-utility test to incorporate the American Law Institute's
most recent definition of a design defect:
A product . . . is defective in design when the foreseeable
risks of harm posed by the product could have been
reduced or avoided by the adoption of a reasonable
alternative design by the seller or other distributor, or a
predecessor in the commercial chain of distribution, and
the omission of the alternative design renders the product
not reasonably safe.
390 S.C. 203, 223–24, 701 S.E.2d 5, 16 (2010) (emphasis added) (quoting
Restatement (Third) of Torts: Prods. Liab. § 2(b) (1998)). Based on this definition,
the court set forth the following framework for a plaintiff seeking to establish a
design defect claim:
[I]n a product liability design defect action, the plaintiff
must present evidence of a reasonable alternative design.
The plaintiff will be required to point to a design flaw in
the product and show how his alternative design would
have prevented the product from being unreasonably
dangerous. This presentation of an alternative design must
include consideration of the costs, safety and functionality
associated with the alternative design.
Id. at 225, 701 S.E.2d at 16. In other words,
[t]he analysis asks the trier of fact to determine whether
the potential increased price of the product (if any), the
potential decrease in the functioning (or utility) of the
product (if any), and the potential increase in other safety
concerns (if any) associated with the proffered alternative
design are worth the benefits that will inhere in the
proposed alternative design.
Id. n.16. "The state of the art and industry standards are relevant to show . . . the
reasonableness of the design . . . ." Bragg, 319 S.C. at 543, 462 S.E.2d at 328.
Here, the circuit court concluded that the evidence created a fact issue for the
jury as to the existence of a reasonable alternative design. We agree. We
acknowledge that the record shows Duke used the safety valves it purchased from
Appellants for high-pressure, high-heat applications—the temperature exceeded
1,000 degrees, and the pressure was approximately 1,200 pounds per square inch. If
these valves were not working correctly, the connecting lines could explode,
endangering any nearby persons. Asbestos, as opposed to other substances such as
fiberglass, rubber, cork, or vegetable fibers, could safely stand up to the extreme
conditions of temperature and pressure. An asbestos gasket was one of the best-
performing gaskets for these conditions. Dale, who had been trained in the types of
gaskets that could be used in various temperature and pressure settings, explained
that a rubber gasket would melt at 1,200 degrees.
On the other hand, Fisher's corporate representative, Ronald Dumistra,
admitted that Fisher had non-asbestos gaskets available for its customers. Dumistra
also admitted that for high-pressure, high-temperature applications, a metal gasket
could have been used. Therefore, a metal gasket was a candidate for the jury's
consideration of a reasonable alternative design, given that Dumistra seemed to
consider its functionality and safety to be equivalent to that of asbestos gaskets.
Further, there was no evidence that a metal gasket was more expensive than an
asbestos gasket. Even if there had been such evidence, a juror could have reasonably
inferred from the expert testimony on causation that the risk of exposing Duke
employees to deadly asbestos fibers was so grave that no economic cost savings
would have been worth that risk. See Branham, 390 S.C. at 225 n.16, 701 S.E.2d at16 n.16 ("The analysis asks the trier of fact to determine whether the potential
increased price of the product (if any), the potential decrease in the functioning (or
utility) of the product (if any), and the potential increase in other safety concerns (if
any) associated with the proffered alternative design are worth the benefits that will
inhere in the proposed alternative design." (emphasis added)); Bragg, 319 S.C. at
543, 462 S.E.2d at 328 ("[A] product is unreasonably dangerous and defective if the
danger associated with the use of the product outweighs the utility of the product."
(emphasis added)); Restatement (Third) of Torts: Prods. Liab. § 2 cmt. f (1998) ("A
plaintiff is not necessarily required to introduce proof on all of [the factors that may
be considered in determining whether an alternative design is reasonable and
whether its omission renders a product not reasonably safe]; their relevance, and the
relevance of other factors, will vary from case to case.").
Therefore, the circuit court properly concluded that the evidence created a fact
issue for the jury. See Gastineau, 331 S.C. at 568, 503 S.E.2d at 713 (holding that a
motion for a JNOV "may be granted only if no reasonable jury could have reached
the challenged verdict.").
D. Deviation from Standard of Care
Next, Appellants argue they are entitled to a JNOV on Respondents'
negligence claim because they did not present any evidence of the applicable
standard of care or Appellants' deviation from such a standard. Specifically,
Appellants assert that (1) Respondents' citation of government regulations was not
sufficient evidence of the standard of care; and (2) Respondents did not present
evidence of a reasonable alternative design and, therefore, failed to establish that
Appellants deviated from any applicable standard of care. We disagree.
"Evidence of industry standards, customs, and practices is 'often highly
probative when defining a standard of care.'" Elledge v. Richland/Lexington Sch.
Dist. Five, 341 S.C. 473, 477, 534 S.E.2d 289, 290 (Ct. App. 2000) (quoting 57A
Am. Jur. 2d Negligence § 185 (1999)), aff'd, 352 S.C. 179, 573 S.E.2d 789 (2002).
"Safety standards promulgated by government or industry organizations in particular
are relevant to the standard of care for negligence." Id. at 477, 534 S.E.2d at 290–
91; see also Albrecht v. Balt. & Ohio R.R. Co., 808 F.2d 329, 332–33 (4th Cir. 1987)
("'In a negligence action, regulations promulgated under . . . [OSHA] provide
evidence of the standard of care exacted of employers, but they neither create an
implied cause of action nor establish negligence per se.' . . . That rule is consistent
with 29 U.S.C. § 653(b)(4)[,] which provides . . . that OSHA shall not be construed
to supersede, diminish or affect the common law or statutory duties or liabilities of
employers with respect to injuries to their employees." (quoting Melerine v.
Avondale Shipyards, Inc., 659 F.2d 706, 707 (5th Cir. 1981), abrogated on other
grounds by Acosta v. Hensel Phelps Constr. Co., 909 F.3d 723, 743 (5th Cir. 2018)));
Phelps v. Duke Power Co., 332 S.E.2d 715, 717 (N.C. Ct. App. 1985) (holding that
the trial court erred in excluding evidence relating to the National Electrical Safety
Code because it was "instructive as to whether an electrical company used
reasonable care" and, therefore, "admissible as an aid to the prudent or reasonable
man rule"); McComish v. DeSoi, 200 A.2d 116, 121 (N.J. 1964) ("[A safety] code is
not introduced as substantive law, as proof of regulations or absolute standards
having the force of law or of scientific truth. It is offered in connection with expert
testimony which identifies it as illustrative evidence of safety practices or rules
generally prevailing in the industry, and as such it provides support for the opinion
of the expert concerning the proper standard of care."); Stone v. United Eng'g, 475
S.E.2d 439, 454 (W.Va. 1996) ("Courts have become increasingly appreciative of
the value of national safety codes and other guidelines issued by governmental and
voluntary associations to assist the trier of fact in applying the standard of due care
in negligence cases."); 57A Am. Jur. 2d Negligence § 758 ("A number of safety
codes and other forms of objective standards of safe construction, operation, and the
like, have been developed, issued, or published by governmental authorities, or by
voluntary associations, as informative or advisory standards. Where such a code is
adopted by an administrative agency pursuant to legislative authority, or after
adoption by the agency[,] such code is ratified by the legislature, the code has the
force of law, and its violation may constitute negligence per se, or, at least, evidence
of negligence." (footnote omitted)).
Here, Respondents' occupational medicine expert, Dr. Frank, testified that by
1960, the scientific community had established a causal connection between
asbestos exposure and mesothelioma. Dr. Frank, who has been a consultant to the
National Institute for Occupational Safety and Health and an advisor to OSHA,
further testified that by 1980, OSHA regulations required products containing
asbestos to carry a warning label and Appellants were subject to these regulations.
To obtain an exemption from the warning label requirement, the manufacturer had
to test the product to demonstrate that it did not liberate asbestos fibers into the
surrounding environment. Although Appellants manufactured only the valves they
sold to Duke and not the asbestos gaskets inside the valves, they had a responsibility
to test these components to verify that they would not release fibers. See Duncan v.
Ford Motor Co., 385 S.C. 119, 133, 682 S.E.2d 877, 884 (Ct. App. 2009) ("A
manufacturer who incorporates into his product a component made by another has a
responsibility to test and inspect such component, and his negligent failure to
properly perform such duty renders him liable for injuries proximately caused as a
consequence.").23
Further, Dr. Frank indicated Appellants were on notice of the dangers of
asbestos and, thus, could have advised Duke to caution employees that if they were
going to liberate dust from the asbestos gaskets in Appellants' valves, they needed
to do so in a manner that would reduce their exposure. Dr. Frank explained that
when an asbestos gasket is new, it is encapsulated, but after normal use of the
product, it deteriorates. Dr. Frank further explained that as the asbestos gasket is
broken down, especially when removed from a flange with scrapers and electrical
equipment, more and more fibers are liberated. Dr. Frank stated that if the resulting
dust is visible, as Dale witnessed, the level of exposure is very high, and in fact,
there may be millions or billions of asbestos fibers present when the dust is visible.
Appellants' corporate representatives admitted that when Dale worked as a
mechanical inspector, Appellants never provided any warnings to their customers or
users, they never applied warning labels to their products, and they did not conduct
any testing to determine whether maintenance activities would liberate asbestos
fibers into the air. Further, the evidence and the reasonable inferences from that
23
This is consistent with the testimony of Crosby's corporate representative, Robert
Martin, who stated that industry standards required valve manufacturers to be
responsible for every component between the "inlet flange" and the "outlet flange."
evidence show that Appellants' use of metal gaskets in their valves would have been
a reasonable alternative to their use of asbestos gaskets. See supra.
Based on the foregoing, Respondents presented sufficient evidence of both
the standard of care and Appellants' deviation from that standard.
II. Additur
Appellants challenge the circuit court's granting of Respondents' motion for a
new trial nisi additur on the ground that the court based its ruling on speculation and
did not articulate compelling reasons for increasing the damages awards. We
disagree.
"When the verdict indicates that the jury was unduly liberal or conservative
in its view of the damages, the [circuit court] alone has the power to [alter] the verdict
by the granting of a new trial nisi." Riley v. Ford Motor Co., 414 S.C. 185, 192, 777
S.E.2d 824, 828 (2015) (quoting Allstate Ins. Co. v. Durham, 314 S.C. 529, 531, 431
S.E.2d 557, 558 (1993)). "The consideration of a motion for a new trial nisi additur
requires the [circuit court] to consider the adequacy of the verdict in light of the
evidence presented." Vinson v. Hartley, 324 S.C. 389, 405, 477 S.E.2d 715, 723 (Ct.
App. 1996). Motions for a new trial nisi "are addressed to the sound discretion of
the [circuit court]." Riley, 414 S.C. at 192, 777 S.E.2d at 828 (quoting Graham v.
Whitaker, 282 S.C. 393, 401, 321 S.E.2d 40, 45 (1984)). However, the circuit court's
exercise of discretion "is not absolute[,] and it is the duty of this [c]ourt in a proper
case to review and determine whether there has been an abuse of discretion
amounting to error of law." Id. at 192–93, 777 S.E.2d at 828–29 (quoting Graham,
282 S.C. at 401–02, 321 S.E.2d at 45); see also Sapp v. Wheeler, 402 S.C. 502, 512,
741 S.E.2d 565, 571 (Ct. App. 2013) ("The grant or denial of a motion for a new
trial nisi rests within the discretion of the [circuit court] and [its] decision will not
be disturbed on appeal unless [its] findings are wholly unsupported by the evidence
or the conclusions reached are controlled by error of law." (quoting Waring v.
Johnson, 341 S.C. 248, 256, 533 S.E.2d 906, 910 (Ct. App. 2000))). "'Compelling
reasons' must be given to justify the [circuit] court invading the jury's province in
this manner." Riley, 414 S.C. at 193, 777 S.E.2d at 829.
"The [circuit court] who heard the evidence and is more familiar with the
evidentiary atmosphere at trial possesses a better-informed view of the damages than
this [c]ourt." Vinson, 324 S.C. at 405, 477 S.E.2d at 723. "Accordingly, great
deference is given to the [circuit court]." Id. at 406, 477 S.E.2d at 723 (emphasis
added); see also Riley, 414 S.C. at 194, 777 S.E.2d at 829 ("[T]he court of appeals
ignored the applicable abuse-of-discretion standard of review, instead focusing its
inquiry on a de novo evaluation of whether, in its view, there was sufficient
justification for 'invading the jury's province.' This was error."). But see Todd v.
Joyner, 385 S.C. 509, 517, 685 S.E.2d 613, 618 (Ct. App. 2008) (per curiam)
("'While the granting of such a motion rests within the sound discretion of the
[circuit] court, substantial deference must be afforded to the jury's determination of
damages.' To this end, the [circuit] court must offer compelling reasons for invading
the jury's province by granting a motion for additur." (emphasis added) (citation
omitted) (quoting Green v. Fritz, 356 S.C. 566, 570, 590 S.E.2d 39, 41 (Ct. App.
2003))), aff'd, 385 S.C. 421, 685 S.E.2d 595 (2009).24
Here, the jury awarded $200,000 in compensatory damages to Dale and
$100,000 to Brenda for loss of consortium. The circuit court concluded that the
award to Dale was "inadequate and should be increased to more accurately reflect
the extent of their losses." The circuit court then observed, "[t]he jury only awarded
[Dale] medical expenses in the amount of $142,000, plus $58,000 for pain and
suffering." Appellants argue this observation was speculative and, therefore, cannot
serve as a compelling reason to grant an additur. Appellants point out that no
medical bills were introduced into evidence and the verdict form did not ask the jury
to designate respective amounts for medical expenses and pain and suffering.
Appellants maintain that these omissions make it impossible to know (1) how much
of the $200,000 award was for medical expenses or (2) whether the loss of
consortium award to Brenda included medical expenses.
Appellants also maintain that "parsing" a verdict is prohibited in the absence
of a special verdict form. In support of this proposition, Appellants cite to Jenkins
v. Few, 391 S.C. 209, 705 S.E.2d 457 (Ct. App. 2010) and Moore v. Moore, 360 S.C.
241, 257, 599 S.E.2d 467, 475 (Ct. App. 2004). In Jenkins, the appellant argued that
the circuit court "erred in declining to reduce the jury's award of actual damages for
trespass to personal property," but two other causes of action were also submitted to
the jury, and the parties had chosen to use a general verdict form. 391 S.C. at 220–
21, 705 S.E.2d at 463. This court stated that it was impossible to determine how the
jury allocated damages between the three causes of action and declined to speculate
as to the allocation. Id. at 221, 705 S.E.2d at 463. Therefore, the court left the circuit
court's ruling undisturbed. Id.
24
We acknowledge that the body of our case law has seemingly inconsistent
standards for reviewing the granting of a new trial nisi. We follow in the footsteps
of our supreme court's most recent opinion involving a new trial nisi additur, Riley,
by giving due deference to the circuit court's exercise of discretion.
In Moore, the appellant argued that the circuit court should not have submitted
a breach of fiduciary duty claim to the jury because the respondent did not prove
damages with reasonable certainty. 360 S.C. at 253, 599 S.E.2d at 473. This court
noted that more than one measure of damages was available for breach of fiduciary
duty and concluded that without a special verdict form to determine whether the
damages were for lost profit or some other measure, the court would have to engage
in speculation to address the appellant's assignment of error. Id. at 256–57, 599
S.E.2d at 475. Declining to do so, the court upheld the circuit court's submission of
the claim to the jury. Id. at 257, 599 S.E.2d at 475.
Neither Jenkins nor Moore created a generalized rule of law applicable to
circuit courts in reviewing the suitability of a jury verdict. In each case, the appellant
submitted an assignment of error that required this court to engage in a speculative
determination of the components of a jury's general verdict. Thus, this court's
conclusions in Jenkins and Moore were case-specific. If any general rule may be
gleaned from these conclusions, it is the time-honored rule that no factual or legal
determination may be based on speculation.
In the present case, we do not view the circuit court's observation about the
jury's award of medical costs as speculative. See Speculate, Merriam-Webster
Dictionary, https://www.merriam-webster.com/dictionary/speculate (last visited
August 25, 2021) (defining "speculate" as "to take to be true on the basis of
insufficient evidence"). Rather, the observation was based on Dr. Frank's testimony
that he had seen some of the medical bills and the amount he saw was $142,000.
Therefore, the circuit court's observation was a reasonable inference from that
evidence. Further, it is highly unlikely that the loss of consortium verdict, which
was only $100,000, included medical expenses, given the medical bill Dr. Frank saw
was for $142,000.
It is more likely that the jury awarded Dale $142,000 for medical expenses
and the remainder of the $200,000 ($58,000) for non-economic damages. Cf. Riley,
414 S.C. at 193–95, 777 S.E.2d at 829–30 (observing that the plaintiff presented
expert testimony that the decedent's family suffered over $228,000 in economic
damages; stating that the circuit court "was well aware that the [$300,000] jury
verdict included an award of noneconomic damages, yet . . . articulated compelling
circumstances that [the circuit court] believed warranted the nisi additur;" and
holding that there was no abuse of discretion); Waring, 341 S.C. at 260, 533 S.E.2d
at 912 ("As to Johnson's claim the jury's verdict may have been intended to represent
a portion of Waring's medical expenses, plus pain and suffering, we find this
argument patently untenable. The jury's award of exactly the amount of Waring's
medical expenses, to the penny, is an attempt to reimburse her for those very
expenses."); Williams v. Robertson Gilchrist Const. Co., 301 S.C. 153, 155, 390
S.E.2d 483, 484 (Ct. App. 1990), overruled on other grounds by O'Neal v. Bowles,
314 S.C. 525, 431 S.E.2d 555 (1993) (concurring in the circuit court's conclusion
that a damages award in the exact amount of the economic losses as presented by
the plaintiff's expert economist indicated the jury's disregard of testimony
concerning a funeral bill and non-economic losses); Jones v. Ingles Supermarkets,
Inc., 293 S.C. 490, 494, 361 S.E.2d 775, 777 (Ct. App. 1987), overruled on other
grounds by O'Neal v. Bowles, 314 S.C. 525, 431 S.E.2d 555 (holding the circuit
court properly granted a new trial nisi additur based on the jury's award matching
the exact amount of proven economic loss and failing to award noneconomic
damages).
Therefore, unlike the posture of this court in Jenkins and Moore, the circuit
court in the present case possessed concrete information from the evidence on which
it could base its observation about the jury's award of medical costs. See Vinson,
324 S.C. at 405, 477 S.E.2d at 723 ("The consideration of a motion for a new trial
nisi additur requires the [circuit court] to consider the adequacy of the verdict in
light of the evidence presented." (emphasis added)); id. ("The [circuit court] who
heard the evidence and is more familiar with the evidentiary atmosphere at trial
possesses a better-informed view of the damages than this [c]ourt." (emphases
added)).
Moreover, we do not view this particular observation as critical to the circuit
court's discretionary determination that the jury's overall verdict was inadequate.
After making its observation about the jury's award of medical costs, the circuit court
recited the law on all categories of damages applicable to the case and thoroughly
summarized the evidence supporting an increased verdict. See infra. The circuit
court concluded that the evidence supported damages for medical expenses, pain and
suffering, loss of enjoyment of life, mental anguish, and future damages and "[t]he
jury's award of only $200,000 was not sufficient to make [Dale] whole for the
magnitude of his losses." Cf. Bailey v. Peacock, 318 S.C. 13, 14, 455 S.E.2d 690,
692 (1995) (reversing the circuit court's granting of a new trial nisi additur because
the circuit court made no finding that the verdict was inadequate). The essence of
the circuit court's ruling was the inadequacy of the overall verdict in light of the
evidence presented at trial. Inconsequential language included in that ruling is not a
valid basis for reversal. See Sapp, 402 S.C. at 512, 741 S.E.2d at 571 ("The grant or
denial of a motion for a new trial nisi rests within the discretion of the trial [court]
and [its] decision will not be disturbed on appeal unless [its] findings are wholly
unsupported by the evidence or the conclusions reached are controlled by error of
law." (emphases added) (quoting Waring, 341 S.C. at 256, 533 S.E.2d at 910));
Vinson, 324 S.C. at 405, 477 S.E.2d at 723 ("The consideration of a motion for a
new trial nisi additur requires the [circuit court] to consider the adequacy of the
verdict in light of the evidence presented." (emphasis added)); id. ("The [circuit
court] who heard the evidence and is more familiar with the evidentiary atmosphere
at trial possesses a better-informed view of the damages than this [c]ourt." (emphases
added)).
Appellants also challenge the circuit court's respective summaries of the
evidence regarding medical expenses, noneconomic damages, and loss of
consortium damages. As to medical expenses, Appellants assert that the circuit
court's reliance on Respondents' evidence was misplaced because that evidence was
speculative. We disagree.
"Generally, in order for damages to be recoverable, the evidence should be
such as to enable the court or jury to determine the amount thereof with reasonable
certainty or accuracy." Austin v. Stokes-Craven Holding Corp., 387 S.C. 22, 43, 691
S.E.2d 135, 146 (2010) (emphasis added) (quoting Whisenant v. James Island Corp.,
277 S.C. 10, 13, 281 S.E.2d 794, 796 (1981)). Although the amount of damages
may not "be left to conjecture, guess or speculation, proof with mathematical
certainty of the amount of loss or damage is not required." Id. Further, "[i]n a
personal injury action, the plaintiff must recover for all injuries, past and
prospective, which arose and will arise from the defendant's tortious activity."
Haltiwanger v. Barr, 258 S.C. 27, 32, 186 S.E.2d 819, 821 (1972) (emphases added)
(quoting 22 Am. Jur. Damages § 27). "Thus, recovery must be had for future pain
and suffering, and for the reasonable value of medical services and impaired earning
capacity, to the extent that these injuries are reasonably certain to result in the future
from the injury complained of." Id. (emphasis added) (quoting 22 Am. Jur. Damages
§ 27). In many instances, a verdict that includes future damages "must be
approximated." Id. at 32–33. Additionally,
[a] plaintiff in a personal injury action seeking damages
for the cost of medical services provided to him as a result
of a tortfeasor's wrongdoing is entitled to recover the
reasonable value of those medical services, not
necessarily the amount paid. Although the amount paid
may be relevant in determining the reasonable value of
those services, the trier of fact must look to a variety of
other factors in making such a finding. Among those
factors to be considered by the jury are the amount billed
to the plaintiff, and the relative market value of those
services. Clearly, the amount actually paid for medical
services does not alone determine the reasonable value of
those medical services. Nor does it limit the finder of fact
in making such a determination.
Haselden v. Davis, 353 S.C. 481, 484, 579 S.E.2d 293, 295 (2003) (emphases added)
(citations omitted). Notably, the opinion of a medical expert has been held to
reliably indicate the reasonable value of past and future medical care when it is based
on medical data specific to the plaintiff's case. See Koenig v. Johnson, No. 2:18-
CV-3599-DCN, 2020 WL 2308305, at *10–12 (D.S.C. May 8, 2020).
In the present case, by the time of trial, Dr. Frank had been a specialist in both
internal medicine and occupational medicine for over thirty-seven years and
involved in scientific research on the topics of asbestos and mesothelioma for almost
fifty years. In addition to his medical degree, he held a doctorate in biomedical
sciences. He also taught courses in environmental medicine and biomedical science.
He testified that he reviewed Dale's medical records, testimony, and medical bills
and those bills were in line with costs typically associated with treatment of
mesothelioma. Dr. Frank also provided a thorough account of the progression of
Dale's mesothelioma and his past treatments before assigning a likely cost to all past
and future medical costs. Cf. Koenig, 2020 WL 2308305 at *10 (noting the plaintiff's
expert explained how the plaintiff's diagnoses required certain medical treatment);
id. at *11 (observing that the expert's cost estimates were based on a review of the
plaintiff’s medical record and the expert’s forty years of experience in rehabilitative
medicine and holding the expert’s experience and education in the field provided a
reliable basis for his opinion on the cost of the plaintiff’s future medical care). Dr.
Frank estimated that all of Dale's past and future medical expenses would likely
range from hundreds of thousands of dollars to $1 million or more. Dr. Frank
attributed this estimate to the fact that Dale had already endured approximately 18
months of ongoing care and extensive treatment, including a complicated surgery.
Specifically, Dr. Frank stated:
Cases like his[,] with the kind of extensive treatment and
surgery he's had, clearly hundreds of thousands. Cases
even go to a million dollars or more. So his would be at
the high end, given all the things that he's had. Obviously,
somebody who comes in, gets diagnosed and dies in a
month, their costs are less. He's had ongoing care and
extensive care for a long period of time. The surgery alone
could be hundreds of thousands of dollars. And then with
everything else, he would be at the high end of what these
kinds of cases cost.
(emphasis added). Dr. Frank further explained that it is likely Dale will die from
mesothelioma, and closer to the time of death, the medical interventions and
hospitalizations will become more intense and more expensive, such as intravenous
feedings and eventually hospice. Appellants' own expert, Dr. James Crapo, admitted
that before Dale's death, he would "very likely" have more hospitalizations. Dr.
Crapo also admitted that it was likely Dale would eventually need supplemental
oxygen and require around-the-clock nursing care. At the time of trial, Dale was
undergoing experimental treatment involving immunotherapy as an alternative to
the chemotherapy Dale could no longer endure. Dr. Frank confirmed that all of
Dale's treatments were medically necessary.
Given Dr. Frank's thorough review and interpretation of Dale's medical data,
"viewed through the lens of his extensive and specialized experience, training, and
education," we reject Appellants' claim that Dr. Frank's testimony on the cost of
Dale's medical care was speculative. Koenig, 2020 WL 2308305 at *10 (declining
to exclude the opinions of the plaintiff's expert physician regarding the cost of
plaintiff’s future medical care and holding the opinions were reliable because they
were based on the expert’s "interpretation of objective medical data viewed through
the lens of his extensive and specialized experience, training, and education").
In its order granting Respondents' new trial nisi, the circuit court observed,
Dr. Frank testified, without dispute, that the total cost of
[Dale's] past and future medical care, from the time of his
diagnosis to the time of his death, would reasonably be
$1,000,000. This undisputed testimony took into account
some of [Dale's] past medical bills of $142,000, plus the
cost of his surgery that was hundreds of thousands of
dollars.
The jury heard evidence that [Dale] is currently
undergoing an experimental therapy that requires him to
go for treatments and doctor visits several times a week.
Experts on both sides agreed that [Dale] would likely die
from mesothelioma and that his medical needs would
increase as he got sicker and closer to death.
(emphasis in original) (transcript citations omitted).
Appellants characterize the above language as "crediting [Dr.] Frank's
speculation about medical costs as undisputed evidence that the jury had to believe."
Yet, Appellants have not argued that Dr. Frank was unqualified to testify regarding
medical costs. While the jury was not required to believe Dr. Frank's testimony,25
the circuit court was not precluded from exercising its discretion to consider this
testimony credible. See Vinson, 324 S.C. at 405, 477 S.E.2d at 723 ("The
consideration of a motion for a new trial nisi additur requires the [circuit court] to
consider the adequacy of the verdict in light of the evidence presented." (emphasis
added)); id. ("The [circuit court] who heard the evidence and is more familiar with
the evidentiary atmosphere at trial possesses a better-informed view of the damages
than this [c]ourt." (emphases added)); id. at 406, 477 S.E.2d at 723 ("Accordingly,
great deference is given to the [circuit court]." (emphasis added)); Sapp, 402 S.C.
at 512, 741 S.E.2d at 571 ("The grant or denial of a motion for a new trial nisi rests
within the discretion of the [circuit court] and [its] decision will not be disturbed on
appeal unless [its] findings are wholly unsupported by the evidence or the
conclusions reached are controlled by error of law." (emphasis added) (quoting
Waring, 341 S.C. at 256, 533 S.E.2d at 910)); see also Riley, 414 S.C. at 194, 777
S.E.2d at 829 ("[T]he court of appeals ignored the applicable abuse-of-discretion
standard of review, instead focusing its inquiry on a de novo evaluation of whether,
in its view, there was sufficient justification for 'invading the jury's province.' This
was error."); id. at 192, 777 S.E.2d 824, 828 ("When the verdict indicates that the
jury was unduly liberal or conservative in its view of the damages, the [circuit court]
alone has the power to [alter] the verdict by the granting of a new trial nisi." (quoting
Durham, 314 S.C. at 531, 431 S.E.2d at 558)). Rather, the circuit court's
determination that the verdict should adequately reflect Dr. Frank's reliable opinion
on the enormous past and future expenses of Dale's disease serves as a compelling
reason to increase the damages award.
As to noneconomic damages, the circuit court first examined awards for pain
and suffering in comparable cases. See Lucht v. Youngblood, 266 S.C. 127, 136, 221
S.E.2d 854, 858 (1976) ("The comparison approach is helpful and sometimes
forceful, however, each case must be evaluated as an individual one, within the
25
See Steele v. Dillard, 327 S.C. 340, 343–44, 486 S.E.2d 278, 280 (Ct. App. 1997)
(holding that the jury was not required to believe uncontradicted evidence).
framework of its distinctive facts."); Kapuschinsky v. United States, 259 F. Supp. 1,
8 (D.S.C. 1966) ("Admittedly not controlling, but worthy of note are treatments of
verdicts from all over this country."). The circuit court noted, "Damages awards for
pain and suffering in comparable mesothelioma cases range from $1.5 million to
more than $20 million." The court cited numerous examples of verdicts within this
range being upheld by courts across the country.
The circuit court then summarized in stark detail the evidence presented as to
Dale's pain and suffering, loss of enjoyment of life, and mental anguish, and this
summary is supported by the testimony.26 Cf. Riley, 414 S.C. at 194, 777 S.E.2d at
829 (upholding an additur of $600,000 in a wrongful death action and noting the
circuit court gave a thorough recitation of the "uncontested, and emotionally
compelling" evidence of economic and noneconomic losses suffered by the
decedent's family); id. at 194–95, 777 S.E.2d 824, 830 (observing that the circuit
court was aware that the jury's $300,000 verdict, which included over $228,000 in
economic damages, included an award of noneconomic damages and acted within
its discretion in granting additur by articulating compelling circumstances that the
presiding judge believed warranted additur); Jones, 293 S.C. at 494, 361 S.E.2d at
777 (holding the circuit court properly granted a new trial nisi additur based on the
jury's award matching the exact amount of proven economic loss and failing to
award noneconomic damages).
As to the $100,000 award to Brenda for loss of consortium, the circuit court
highlighted Brenda's fifty-one-year marriage to Dale, the neglect of her own health
to care for Dale, her fear, and her potential future loss of at least ten more years with
Dale.
Based on the foregoing, the circuit court acted well within its discretion in
granting Respondents' motion for new trial nisi additur. See Sapp, 402 S.C. at 512,
741 S.E.2d at 571 ("The grant or denial of a motion for a new trial nisi rests within
the discretion of the trial [court] and [its] decision will not be disturbed on appeal
unless [its] findings are wholly unsupported by the evidence or the conclusions
reached are controlled by error of law." (quoting Waring, 341 S.C. at 256, 533 S.E.2d
at 910)).
26
In addition to the testimony summarized in the circuit court's order, we note
Appellants' expert admitted that mesothelioma is one of the more aggressive cancers
and as the disease progresses, the pain is so intense that "heavy doses of narcotic
medication[ are] necessary" to control it.
III. Setoff
Prior to trial, Respondents received $2,270,000 in settlement proceeds from
Appellants' co-defendants. Respondents allocated one-third of the total proceeds
($756,667) to Dale's claims; one-third to Brenda's claims; and one-third to "the
release of future claims." Appellants contend the circuit court erred by accepting
Respondents' allocation of one-third of the total proceeds to a "future wrongful death
claim." Appellants argue that in addition to the partial setoff the court awarded them
for Dale's claims ($756,667) against the damages awarded to Dale ($1,580,000),
they were entitled to a setoff of the one-third Respondents allocated for future
claims. We disagree.
"The right to setoff has existed at common law in South Carolina for over 100
years." Riley, 414 S.C. at 195, 777 S.E.2d at 830. "Allowing setoff 'prevents an
injured person from obtaining a double recovery for the damage he sustained, for it
is almost universally held that there can be only one satisfaction for an injury or
wrong.'" Id. (quoting Rutland v. S.C. Dep't of Transp., 400 S.C. 209, 216, 734 S.E.2d
142, 145 (2012)). "In 1988, these equitable principles were codified as part of the
South Carolina Contribution Among Tortfeasors Act . . . ."27 Id. In particular,
section 15-38-50 provides in pertinent part,
When a release or a covenant not to sue or not to enforce
judgment is given in good faith to one of two or more
persons liable in tort for the same injury or the same
wrongful death . . . it does not discharge any of the other
tortfeasors from liability for the injury or wrongful death
unless its terms so provide, but it reduces the claim against
the others to the extent of any amount stipulated by the
release or the covenant, or in the amount of the
consideration paid for it, whichever is the greater[.]
(emphases added). "Therefore, before entering judgment on a jury verdict, the court
must reduce the amount of the verdict to account for any funds previously paid by a
settling defendant, so long as the settlement funds were paid to compensate the same
plaintiff on a claim for the same injury." Smith v. Widener, 397 S.C. 468, 471–72,
724 S.E.2d 188, 190 (Ct. App. 2012) (emphases added). In other words, "[a] non-
settling defendant is entitled to credit for the amount paid by another defendant who
27
S.C. Code Ann. §§ 15-38-10 to -70 (2005 and Supp. 2020).
settles for the same cause of action." Riley, 414 S.C. at 195, 777 S.E.2d at 830
(emphasis added) (quoting Rutland, 400 S.C. at 216, 734 S.E.2d at 145).
"When the settlement is for the same injury, the nonsettling defendant's right
to a setoff arises by operation of law." Smith, 397 S.C. at 472, 724 S.E.2d at 190.
"Under this circumstance, '[s]ection 15-38-50 grants the court no discretion . . . in
applying a [setoff].'" Id. (quoting Ellis v. Oliver, 335 S.C. 106, 113, 515 S.E.2d 268,
272 (Ct. App. 1999)). On the other hand, when the settlement "involves more than
one claim, the allocation of settlement proceeds between various causes of action
impacts the amount a non-settling defendant may be entitled to offset." Riley, 414
S.C. at 196, 777 S.E.2d at 830; see also Smith, 397 S.C. at 473, 724 S.E.2d at 191
("[W]hen the prior settlement involves compensation for a different injury from the
one tried to verdict, there is no setoff as a matter of law.").
Here, upon an in camera review of the releases executed by Respondents in
favor of Appellants' co-defendants, the circuit court verified a settlement amount of
$2,270,000. The record does not indicate that the parties to these settlements either
agreed to allocate the settlement proceeds among the respective claims released or
sought court approval of the agreements. Rather, during a post-trial hearing,
Respondents advised the circuit court, "internally, [Respondents] have allocated the
[settlement proceeds] as follows: one-third for [Dale's] claims; one-third for
[Brenda's] claims; and one-third for the release of future claims." The circuit court
"confirmed that all future claims related to [Dale's] mesothelioma, including
wrongful death, were released by [Respondents]." The circuit court then concluded
that Respondents' internal allocation of the settlement proceeds was reasonable and
declined to apply a setoff for the amount Respondents allocated to "future claims
related to [Dale's] mesothelioma, including wrongful death," because any such
future claims for which the settling defendants were released were distinct from the
personal injury and loss of consortium claims tried to verdict. See Smith, 397 S.C.
at 473, 724 S.E.2d at 191 ("[W]hen the prior settlement involves compensation for
a different injury from the one tried to verdict, there is no setoff as a matter of law.").
Initially, we question whether section 15-38-50 contemplates the "internal
allocation" that was merely claimed by Respondents post-settlement rather than
designated by all parties to the settlement agreement. See § 15-38-50 ("When a
release or a covenant not to sue or not to enforce judgment is given in good faith to
one of two or more persons liable in tort for the same injury or the same wrongful
death . . . it does not discharge any of the other tortfeasors from liability for the injury
or wrongful death unless its terms so provide, but it reduces the claim against the
others to the extent of any amount stipulated by the release or the covenant, or in
the amount of the consideration paid for it, whichever is the greater[.]" (emphasis
added)). However, our case law favors a plaintiff's ability to apportion settlement
proceeds "in the manner most advantageous to it." Riley, 414 S.C. at 197, 777 S.E.2d
at 831.
Appellants argue that the circuit court should not have accepted Respondents'
allocation of one-third of the settlement proceeds to a future wrongful death claim
because "that claim is barred as a matter of law" by Respondents' execution of the
releases. We disagree with the logic of this argument, but we will explain its
premise: Although a wrongful death claim is for the benefit of the decedent's
family,28 South Carolina treats this claim as derivative of the decedent's own
personal claim during his lifetime. See Estate of Stokes ex rel. Spell v. Pee Dee
Family Physicians, L.L.P., 389 S.C. 343, 349, 699 S.E.2d 143, 146 (2010) (holding
that a wrongful death claim "lies in the decedent's estate only when the decedent
possessed the right of recovery at his death"); id. at 347, 699 S.E.2d at 145 ("[I]f the
decedent had no claim at his death, the estate has no claim."). If the decedent settled,
or prosecuted to judgment, his personal injury claims against a certain defendant
during his lifetime, his heirs or beneficiaries are precluded from bringing a wrongful
death claim against that defendant after the decedent's death. Id.; see also S.C. Code
28
See Welch v. Epstein, 342 S.C. 279, 304, 536 S.E.2d 408, 421 (Ct. App. 2000)
(indicating a decedent's heirs or beneficiaries may recover the following damages in
a wrongful death action: "(1) pecuniary loss; (2) mental shock and suffering; (3)
wounded feelings; (4) grief and sorrow; (5) loss of companionship; and (6)
deprivation of the use and comfort of the intestate's society, including the loss of his
experience, knowledge, and judgment in managing the affairs of himself and of his
beneficiaries"); see also S.C. Code Ann. § 15-51-10 (2005) ("Whenever the death of
a person shall be caused by the wrongful act, neglect or default of another and the
act, neglect or default is such as would, if death had not ensued, have entitled the
party injured to maintain an action and recover damages in respect thereof, the
person who would have been liable, if death had not ensued, shall be liable to an
action for damages, notwithstanding the death of the person injured, although the
death shall have been caused under such circumstances as make the killing in law a
felony."); S.C. Code Ann. § 15-51-20 (2005) ("Every such action shall be for the
benefit of the wife or husband and child or children of the person whose death shall
have been so caused, and, if there be no such wife, husband, child or children, then
for the benefit of the parent or parents, and if there be none such, then for the benefit
of the heirs of the person whose death shall have been so caused. Every such action
shall be brought by or in the name of the executor or administrator of such person."
(emphasis added)).
Ann. § 15-51-60 (2005) (precluding the application of the Wrongful Death Act to
"any case in which the person injured has, for such injury, brought action, which has
proceeded to trial and final judgment before his or her death."); Restatement
(Second) of Judgments § 46 cmt. b (1982) ("The claim for wrongful death that arises
in favor of the decedent's family, dependents, or representative can be characterized
as either 'derivative' from the injured person's own claim or 'independent' of it. If
the claim for wrongful death is treated as wholly 'derivative,' the beneficiaries of the
death action can sue only if the decedent would still be in a position to
sue. . . . [S]ettlement of the decedent's personal injury claim or its reduction to
judgment for or against the alleged tortfeasor extinguishes the wrongful death claim
against that tortfeasor." (emphasis added) (citation omitted)).
Nonetheless, if there is a significant chance that the injury in dispute will cause
the plaintiff's death before he can complete the prosecution of his personal injury
claim, both the personal injury claim and a future wrongful death claim pose genuine
risks for a defendant seeking to settle the case until those claims are actually released
as part of the settlement. Therefore, we reject Appellants' assumption that if a
settling defendant obtains a release of the personal injury claim, then it is
unreasonable for that defendant to also obtain a release of any future wrongful death
claim due to its derivative nature. Were this assumption to control how settlement
proceeds are allocated, it would allow a non-settling defendant to second-guess the
settling defendant's choice of the claims for which it will pay the plaintiff to release.
Only the settling parties get that choice. Cf. Riley, 414 S.C. at 197, 777 S.E.2d at
831 ("A plaintiff who enters into a settlement with a defendant gains a position of
control and acquires leverage in relation to a nonsettling defendant. This posture is
reflected in the plaintiff's ability to apportion the settlement proceeds in the manner
most advantageous to it. Settlements are not designed to benefit nonsettling third
parties. They are instead created by the settling parties in the interests of these
parties. If the position of a nonsettling defendant is worsened by the terms of a
settlement, this is the consequence of a refusal to settle. A defendant who fails to
bargain is not rewarded with the privilege of fashioning and ultimately extracting a
benefit from the decisions of those who do." (emphases added) (quoting Lard v.
AM/FM Ohio, Inc., 901 N.E.2d 1006, 1019 (Ill. App. 2009))); id. ("Settling parties
are naturally going to allocate settlement proceeds in a manner that serves their best
interests. That fact alone is insufficient to justify appellate reapportionment for the
sole purpose of benefitting [the non-settling defendant].").
Further, Appellants' assignment of error does not logically flow from their
premise that the wrongful death claim is precluded by the release of the personal
injury claim. Should the settling parties effect a simultaneous release of personal
injury and future wrongful death claims within the same document, as was done
here, the resulting preclusion of a future prosecution of either claim does not affect
how the settlement proceeds given in consideration for the release are allocated
among these released claims. By way of comparison, no one would doubt that the
simultaneous release of a personal representative's claims for survival and wrongful
death precludes the future prosecution of both claims, yet it is common practice to
allocate settlement proceeds among those claims.29 Here, Respondents' release of
all past and future claims against the settling defendants should not affect the
allocation of the settlement proceeds among the various claims that were released—
the settlement proceeds were the very consideration for Respondents' release of their
claims. It logically follows that those proceeds should be allocated among the claims
that were released. Therefore, we reject Appellants' argument that the circuit court
should not have accepted Respondents' allocation of one-third of the settlement
proceeds to "future claims related to [Dale's] mesothelioma, including wrongful
death," because "that claim [wrongful death] is barred as a matter of law."
Appellants also maintain that the settlement amount Respondents allocated to
a future wrongful death claim compensates for the same injuries at issue in the
present case. They state that wrongful death claims "allow a decedent's heirs to
pursue the decedent's personal injury claims after his or her death." In making this
conclusion, Appellants rely on Burroughs v. Worsham, 352 S.C. 382, 406, 574
S.E.2d 215, 227 (Ct. App. 2002), for the proposition that a wrongful death claim is
to compensate the heirs of a decedent, who, if he had survived, could have brought
a personal injury action. We do not interpret this proposition as defining the nature
of a wrongful death claim or the damages recoverable under such a claim. Rather,
it is simply the expression of a prerequisite for the right of the decedent's heirs to
recover their own damages in a wrongful death action. See supra.
As to personal injuries sustained by the decedent during his lifetime, damages
are recoverable through a survival claim should he die before prosecuting a personal
injury claim, and it is common for a personal representative of a decedent's estate to
assert both a survival claim and a wrongful death claim in the same litigation. See
S.C. Code Ann. § 15-5-90 (2005) ("Causes of action for and in respect to . . . any
and all injuries to the person . . . shall survive both to and against the personal or real
representative, as the case may be, of a deceased person . . . , any law or rule to the
contrary notwithstanding."); Scott v. Porter, 340 S.C. 158, 170, 530 S.E.2d 389, 395
(Ct. App. 2000) ("Unlike actual damages in a wrongful death action, actual damages
29
See, e.g., Riley, 414 S.C. at 190–91, 777 S.E.2d at 827 (referencing the parties'
"agreed-upon, and court-approved, settlement allocation").
in a survival action are awarded for the benefit of the decedent's estate rather than
for the family."). Therefore, we reject Appellants' argument that the amount
Respondents allocated to a future wrongful death claim compensates for the same
injuries at issue in the present case. See Smith, 397 S.C. at 473 n.1, 724 S.E.2d at
191 n.1 (noting that wrongful death and survival actions are different claims for
different injuries); Welch, 342 S.C. at 303–04, 536 S.E.2d at 420–21 (distinguishing
between damages in a survival action and those for a wrongful death action); id. at
303, 536 S.E.2d at 420–21 ("Actual damages in a survival action are awarded for the
benefit of the decedent's estate. Appropriate damages in survival actions include
those for medical, surgical, and hospital bills, conscious pain, suffering, and mental
distress of the deceased." (citation omitted)).
Finally, Appellants maintain that accepting Respondents' allocation allows
them a double recovery because (1) the circuit court instructed the jury that the
plaintiff "may recover for those future damages that are reasonably certain to result"
and (2) the circuit court invoked Dale's expected death in justifying its increase in
Dale's and Brenda's damages awards. As to the first ground, Appellants' argument
is based on their mistaken assumption that the future wrongful death claim relates to
the same injuries for which Dale was compensated in the present action. See supra
(discussing the distinction between a survival claim and a wrongful death claim).
The circuit court's jury instruction on future damages related to Dale's future medical
expenses and future pain and suffering likely to occur up to the time of his death.
These future damages are recoverable by Dale in the present action (or in a survival
action had Dale died prior to trial). In contrast, the future wrongful death claim
released by Respondents would have sought compensation for the damages suffered
by Dale's heirs or beneficiaries after his death. See supra.
As to the second ground, the circuit court justified its increase in Dale's award
by recounting the testimony concerning the process of dying and the suffering Dale
would experience while dying. Again, these future damages are recoverable by Dale
in the present action (or in a survival action had Dale died prior to trial) but not by
heirs or beneficiaries in a wrongful death action. See supra. On the other hand, the
circuit court justified its increase in Brenda's loss of consortium award by describing
how Dale's mesothelioma had affected Brenda up to the time of trial and noting that
Brenda's time with Dale would be "cut short by at least ten years." Nonetheless, this
reference to the time with Dale that Brenda could lose overlaps with merely one or
two elements out of many for the damages recoverable in a wrongful death action.
Further, the loss of consortium award will compensate Brenda only rather than all
of Dale's heirs or beneficiaries. Therefore, this slight overlap in damages does not
rise to the level of a "double recovery."
In sum, the circuit court's refusal to allow a setoff of the settlement proceeds
allocated to "future claims related to [Dale's] mesothelioma, including wrongful
death," did not result in a double recovery for Respondents. Therefore, we affirm
the circuit court's setoff ruling. See Riley, 414 S.C. at 195, 777 S.E.2d at 830
("Allowing setoff 'prevents an injured person from obtaining a double recovery for
the damage he sustained, for it is almost universally held that there can be only one
satisfaction for an injury or wrong.'" (emphasis added) (quoting Rutland, 400 S.C.
at 216, 734 S.E.2d at 145)).
IV. Motion to Quash
Appellants challenge the circuit court's denial of their respective motions to
quash subpoenas requiring their corporate representatives to appear and testify at
trial. They argue (1) Rule 45, SCRCP, does not authorize courts to exercise
subpoena power over out-of-state parties and (2) the subpoenas were not properly
served on them. We will address these arguments in turn.
Power to compel
Rule 45(a)(2), SCRCP, requires a subpoena commanding attendance at a trial
to be issued from the court for the county in which the trial will be conducted.
Further, an attorney authorized to practice in that court may issue and sign the
subpoena on the court's behalf. Rule 45(a)(3), SCRCP. Here, on July 12, 2017,
Respondents' counsel delivered trial subpoenas by courier to Appellants' counsel in
Charleston, and counsel himself signed for the delivery. The subpoenas were
directed to "Defendant Fisher Controls International, LLC; through Counsel of
Record" and "Defendant Crosby Valves, LLC; through Counsel of Record,"
respectively. Subsequently, Appellants filed their respective motions to quash the
subpoenas on the grounds that the circuit court did not have the power to compel
out-of-state parties to attend trial and they were not properly served pursuant to Rule
45.
The circuit court conducted a hearing by telephone and orally denied
Appellants' respective motions. Appellants' corporate representatives appeared and
testified at trial, and the circuit court later issued a written order denying their
motions to quash. In its order, the circuit court rejected Appellants' argument that
their non-resident status precluded the court from compelling them to send
representatives to testify at trial. The court emphasized that Appellants were parties
to the case and submitted to the court's jurisdiction by making a general appearance
and litigating the case to trial.
Appellants now assert that a court "does not gain unlimited subpoena power
when a party 'submits to the jurisdiction' of the court." Appellants argue there is no
overlap between the doctrines of personal jurisdiction and subpoena power. In
support of their argument, Appellants cite Syngenta Crop Prot., Inc. v. Monsanto
Co., 908 So.2d 121, 128 (Miss. 2005), for the proposition that the "concepts of
personal jurisdiction and subpoena power are altogether different." However, we
note this statement was made within the context of addressing subpoena power over
a foreign corporation that was a non-party: "[T]he provisions of Section 79-4-
15.10(a) do not provide for the issuance of a subpoena duces tecum for service upon
a foreign corporation's registered agent for service of process, when that foreign
corporation is not a party to the litigation." Id. (emphasis added).
Appellants further argue, "Just as Congress established geographic limits to
the federal courts' subpoena power, see Fed. R. Civ. P. 45(c)(1), the South Carolina
General Assembly established that a state court's subpoena power exists only within
South Carolina." We disagree. The legislature did not intend to limit the circuit
court's power to subpoena a party or a corporate party's representative when it
adopted the current language of Rule 45, which includes the travel burden of non-
parties as a ground for quashing a subpoena:
On timely motion, the court . . . shall quash or modify the
subpoena if it:
...
(ii) requires a person who is not a party nor an officer,
director or managing agent of a party, nor a general
partner of a partnership that is a party, to travel more than
50 miles from the county where that person resides, is
employed or regularly transacts business in person, except
that, subject to the provisions of clause (c)(3)(B)(iii) of
this rule, such a person may in order to attend trial be
commanded to travel from any such place within the state
in which the trial is held[.]
Rule 45(c)(3)(A)(ii), SCRCP (emphasis added). Our legislature could have easily
left out the language "who is not a party . . ." from this provision if it did not intend
for the circuit court to have subpoena power over a party. Instead, this language
clearly indicates that parties and their principals may not avail themselves of the
non-party travel-burden ground for quashing a subpoena.30 See CFRE, LLC v.
Greenville Cnty. Assessor, 395 S.C. 67, 74, 716 S.E.2d 877, 881 (2011) ("[W]e must
read the statute so 'that no word, clause, sentence, provision or part shall be rendered
surplusage, or superfluous,' for '[t]he General Assembly obviously intended [the
statute] to have some efficacy, or the legislature would not have enacted it into law.'"
(citation omitted) (alterations in original) (quoting State v. Sweat, 379 S.C. 367, 377,
382, 665 S.E.2d 645, 651, 654 (Ct. App. 2008), aff'd as modified on other grounds,
386 S.C. 339, 688 S.E.2d 569 (2010))); S.C. Dep't of Consumer Affs. v. Rent-A-Ctr.,
Inc., 345 S.C. 251, 255–56, 547 S.E.2d 881, 883–84 (Ct. App. 2001) ("The canon of
construction 'expressio unius est exclusio alterius' or 'inclusio unius est exclusio
alterius' holds that 'to express or include one thing implies the exclusion of another,
or of the alternative.'" (quoting Hodges v. Rainey, 341 S.C. 79, 86, 533 S.E.2d 578,
582 (2000))); Ex parte Wilson, 367 S.C. 7, 15, 625 S.E.2d 205, 209 (2005) ("In
interpreting the meaning of the South Carolina Rules of Civil Procedure, the [c]ourt
applies the same rules of construction used to interpret statutes.").
30
Likewise, the legislature could have modeled our Rule 45(c) after the language in
the federal rule highlighted by Appellants, which includes parties and their principals
in the travel-burden limitation on the court's subpoena power:
A subpoena may command a person to attend a trial,
hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is
employed, or regularly transacts business in person;
or
(B) within the state where the person resides, is
employed, or regularly transacts business in person,
if the person
(i) is a party or a party's officer; or
(ii) is commanded to attend a trial and would
not incur substantial expense.
Fed. R. Civ. P. 45(c)(1). Yet our legislature chose not to adopt this language.
Further, the official note to the 1995 amendment to Rule 45 states, in pertinent
part:
Rule 45(c)(3)(A)(ii) and 45(c)(3)(B)(iii) are amended to
make clear that a non-party general partner of a
partnership that is a party, is treated the same as an officer,
director or managing agent of a party for purposes of trial
subpoenas. Rule 45(c)(3) provides a non-party,
subpoenaed to appear at trial more than fifty miles from
the place of service, the opportunity to move to quash the
subpoena unless a special showing of need is made and
reasonable compensation is provided to the witness. These
special provisions are not available to parties or officers,
directors and managing agents of parties. The
amendment extends the exclusion to a general partner of a
partnership that is a party.
(emphases added). This confirms that the legislature intended for South Carolina
circuit courts to have subpoena power over parties to proceedings over which those
courts preside.
This is consistent with the broad discretionary power a circuit court must
exercise over parties to proceedings before it in order to effectively dispense justice.
See Capital City Ins. Co. v. BP Staff, Inc., 382 S.C. 92, 103, 674 S.E.2d 524, 530
(Ct. App. 2009) ("The court has broad discretion in its supervision over the
progression and disposition of a circuit court case in the interests of justice and
judicial economy."); S.C. Dep't of Highways & Pub. Transp. v. Galbreath, 315 S.C.
82, 85, 431 S.E.2d 625, 628 (Ct. App. 1993) ("The conduct of trial . . . is largely
within the [circuit court's] sound discretion, the exercise of which will not be
disturbed on appeal absent an abuse of that discretion or the commission of legal
error that results in prejudice for the appellant."); cf. Hayden v. 3M Co., 211 So. 3d
528, 532 (La. App. 2017) ("In the same way that Louisiana exercises personal
jurisdiction over parties participating in litigation in the state, those parties may,
upon the discretion of the court, be compelled to appear in Louisiana for discovery
depositions, hearings, and/or trial. For these reasons[,] we reverse the trial court's
quashing of the subpoenas served through the attorneys of record for the non-
domiciliary corporations.").
Based on the foregoing, we reject Appellants' argument that the circuit court
did not have subpoena power over them.
Validity of service
Next, Appellants contend that service of the subpoenas on their counsel in
Charleston was defective because Rule 4, SCRCP, requires service on a person
"authorized by [Appellants] to accept service of process—the companies' registered
agents" and Appellants have no registered agent in South Carolina. We disagree.
Rule 45(b), SCRCP, allows a subpoena to be served at any place within the
state by any person who is not a party and is at least 18 years of age "in the same
manner prescribed for service of a summons and complaint in Rule 4(d) or (j)." Rule
4(d) provides for service of process through not only personal service (Rule 4(d)(1)
through (6)) but also statutory service (Rule 4(d)(7)), certified mail (Rule 4(d)(8)),
or commercial delivery service (Rule 4(d)(9)). Further, Rule 4(j) recognizes the long
standing practice of acceptance of service as equivalent to personal service: "No
other proof of service shall be required when acceptance of service is acknowledged
in writing and signed by the person served or his attorney, and delivered to the person
making service." See Langley v. Graham, 322 S.C. 428, 431–32, 472 S.E.2d 259,
261 (Ct. App. 1996) (stating that Rule 4(j) is "a recognition of the long standing
practice that acknowledgement or acceptance of service is equivalent to personal
service.").
Here, the circuit court concluded that service of the subpoenas was valid under
Rule 4(j) because Appellants' Charleston counsel signed for the package containing
the subpoenas. Appellants argue that Rule 4(j) does not change "the requirement in
Rule 4(d)(3) that service on a corporation must be made to 'an officer, a managing
or general agent, or to any other agent authorized by appointment or by law' . . . ."
Appellants maintain that service "must be made to a registered agent to be effective;
the attorney's acknowledgement of receipt does not make service effective." We
disagree.
The language of Rule 45(b) allows a choice between service of a subpoena in
the various manners set forth in Rule 4(d) or obtaining a written and signed
acceptance of service from the person to whom the subpoena is directed or his
attorney, as provided in Rule 4(j): "Service of a subpoena upon a person named
therein shall be made in the same manner prescribed for service of a summons and
complaint in Rule 4(d) or (j)." (emphases added). Although the language of Rule
4(j) primarily focuses on the substitution of a party's, or his attorney's, written
acknowledgement of service for the proof of service required by Rule 4(g), the
unmistakable reference to Rule 4(j) in Rule 45(b) as prescribing a method for service
of process indicates that the drafter intended for acceptance of service to serve as an
alternative to other methods of serving a subpoena. This is consistent with the note
to the 2002 amendment to Rule 45, which states, in pertinent part:
The first 2002 amendment amends Rule 45(b)(1) to permit
service of subpoenas by the same method as used to serve
a summons and complaint. First, in addition to in hand
service of the subpoena, service on an individual could be
made by leaving the subpoena at the person's home or
usual place of abode with a person of suitable age and
discretion then residing there as provided in Rule 4(d)(1).
Second, a subpoena could be served on an individual, a
corporation, or a partnership by registered or certified
mail, return receipt requested and delivery restricted to the
addressee under Rule 4(d)(8). In addition, the person or
the person's attorney may accept service under Rule 4(j).
(emphasis added). Therefore, we reject Appellants' argument that the attorney's
acknowledgement of receipt under Rule 4(j) does not make service effective.
As to the application of Rule 4(j) to the present case, we note that Appellants
argued before the circuit court that counsel did not accept service on their behalf
pursuant to Rule 4(j) because counsel did not know the contents of the packages
containing the subpoenas when he signed for them. However, on appeal, Appellants
have merely set forth a one-sentence conclusory argument in a footnote with no
supporting authority; therefore, we consider it abandoned. See Rule 208(b)(1)(E),
SCACR ("At the head of each part, the particular issue to be addressed shall be set
forth in distinctive type, followed by discussion and citations of authority."); S.C.
Dep't of Soc. Servs. v. Mother ex rel. Minor Child, 375 S.C. 276, 283, 651 S.E.2d
622, 626 (Ct. App. 2007) ("[W]e note this issue is abandoned because Mother makes
a conclusory argument without citation of any authority to support her claim.");
Ellie, Inc. v. Miccichi, 358 S.C. 78, 99, 594 S.E.2d 485, 496 (Ct. App. 2004)
("Numerous cases have held that where an issue is not argued within the body of the
brief but is only a short conclusory statement, it is abandoned on appeal.");
Glasscock, Inc. v. U.S. Fid. & Guar. Co., 348 S.C. 76, 81, 557 S.E.2d 689, 691–92
(Ct. App. 2001) (holding that a conclusory argument in a footnote, which cited no
supporting authority, was deemed abandoned); State v. Cutro, 332 S.C. 100, 108 n.1,
504 S.E.2d 324, 328 n.1 (1998), (Toal, J., dissenting) ("[A] one-sentence argument
is too conclusory to present any issue on appeal.").
We also note that service was valid under either Rule 4(d)(3), which governs
personal service on a corporation, or Rule 4(d)(9), which allows for service by a
commercial delivery service. Respondents used the FedEx First Overnight service
to deliver the subpoenas to Appellants' counsel. Rule 4(d)(9) allows the use of a
commercial delivery service to effect service of a summons and complaint on an
individual or a corporation if the commercial delivery service meets the
requirements to be considered a designated delivery service in accordance with 26
U.S.C. § 7502(f)(2). We note that the IRS has included the FedEx First Overnight
service in its list of designated private delivery services. See Designation of Private
Delivery Servs., 2016-18 I.R.B. 676 (2016). As to who may sign for a package
delivered pursuant to Rule 4(d)(9), we draw guidance from the following language:
Service pursuant to this paragraph shall not be the basis
for the entry of a default or a judgment by default unless
the record contains a delivery record showing the
acceptance by the defendant which includes an original
signature or electronic image of the signature of the
person served. Any such default or judgment by default
shall be set aside pursuant to Rule 55(c) or Rule 60(b) if
the defendant demonstrates to the court that the delivery
receipt was signed by an unauthorized person. If delivery
of the process is refused or is returned undelivered, service
shall be made as otherwise provided by these rules.
Rule 4(d)(9) (emphases added). Therefore, the court should focus on whether the
person who signed for a package delivered by a commercial service was authorized
by the defendant to accept service of process.
Appellants assert their Charleston counsel was not authorized to accept
service of process on their behalf. Appellants claim that Rule 4(d) requires personal
service and to effect service on a corporation, the plaintiff must serve the
corporation's registered agent within the state. We disagree. Personal service is one
of multiple options for service of process under Rule 4(d), and Rule 4(d)(3), which
governs personal service on a corporation, does not limit those who are authorized
to accept service to registered agents:
Service shall be made as follows: . . . Upon a corporation
or upon a partnership or other unincorporated association
which is subject to suit under a common name, by
delivering a copy of the summons and complaint to an
officer, a managing or general agent, or to any other agent
authorized by appointment or by law to receive service of
process and if the agent is one authorized by statute to
receive service and the statute so requires, by also mailing
a copy to the defendant.
(emphasis added). Rule 4(d)(1), which governs service on individuals, includes
similar language regarding authorized agents: "or by delivering a copy to an agent
authorized by appointment or by law to receive service of process." (emphasis
added). In Hamilton v. Davis, this court interpreted Rule 4(d)(1) in the following
manner:
S.C.R.C.P. 4(d)(1), like its federal counterpart, Rule
4(d)(1) of the Federal Rules of Civil Procedure, provides
for service upon an agent only if authorized by
appointment or by law. Federal cases dealing with agency
by appointment indicate an actual appointment for the
specific purpose of receiving process normally is expected
and the mere fact a person may be considered to act as
defendant's agent for some purpose does not necessarily
mean that the person has authority to receive process. The
courts must look to the circumstances surrounding the
relationship and find authority which is either express or
implied from the type of relationship between the
defendant and the alleged agent. Claims by one to possess
authority to receive process or actual acceptance of
process by an alleged agent will not necessarily bind the
defendant. There must be evidence the defendant intended
to confer such authority.
300 S.C. 411, 414, 389 S.E.2d 297, 298 (Ct. App. 1990) (emphasis added).31
31
Appellants reference authorities interpreting practice under the federal counterpart
to Rule 45 for the proposition that service of a subpoena on a corporation's attorney
is ineffective. However, we do not find these authorities persuasive because Fed. R.
Civ. P. 45(b)(1) limits service of a subpoena to the named person only ("Serving a
subpoena requires delivering a copy to the named person and, if the subpoena
requires that person's attendance, tendering the fees for 1 day's attendance and the
mileage allowed by law"), while South Carolina's rule is more flexible, allowing
Further, "[e]xacting compliance with the rules is not required to effect service
of process." BB & T v. Taylor, 369 S.C. 548, 552, 633 S.E.2d 501, 503 (2006).
"Rather, [the court must] inquire whether the plaintiff has sufficiently complied with
the rules such that the court has personal jurisdiction of the defendant and the
defendant has notice of the proceedings." Roche v. Young Bros., Inc. of Florence,
318 S.C. 207, 210, 456 S.E.2d 897, 899 (1995) (emphases added). "The principal
object of service of process is to give notice to the defendant corporation of the
proceedings against it." Mull v. Ridgeland Realty, LLC, 387 S.C. 479, 485, 693
S.E.2d 27, 30 (Ct. App. 2010) (quoting Burris Chemical, Inc. v. Daniel Const. Co.,
251 S.C. 483, 487, 163 S.E.2d 618, 620 (1968)).
Based on the foregoing, the circumstances in the present case allow the
authority of Appellants' Charleston counsel to be implied from counsel's
representation of them in the very litigation for which the subpoena was issued. See
Hamilton, 300 S.C. at 414, 389 S.E.2d at 298 ("The courts must look to the
circumstances surrounding the relationship and find authority which is either express
or implied from the type of relationship between the defendant and the alleged
agent."). Significantly, the circuit court already had personal jurisdiction over
Appellants, and their counsel already had a duty to ensure they had notice of the
proceedings. See Taylor, 369 S.C. at 552, 633 S.E.2d at 503 ("Exacting compliance
with the rules is not required to effect service of process. 'Rather, [the court must]
inquire whether the plaintiff has sufficiently complied with the rules such that the
court has personal jurisdiction of the defendant and the defendant has notice of the
proceedings.'" (alteration in original) (emphases added) (citation omitted) (quoting
Roche, 318 S.C. at 210, 456 S.E.2d at 899)). Under these circumstances, counsel
was authorized by Appellants to accept service of process under either Rule 4(d)(3)
(personal service on a corporation) or (d)(9) (commercial delivery service).
Based on the foregoing, the circuit court properly denied Appellants' motion
to quash the subpoenas.
CONCLUSION
Accordingly, we affirm the circuit court's orders denying Appellants' motion
to quash, denying their JNOV motion, granting Respondents' motion for new trial
nisi additur, and granting in part Appellants' motion for set-off.
service on those persons designated in Rule 4(d) (named person or authorized agent
or officer of corporation) or Rule 4(j) (named person or counsel).
AFFIRMED.
WILLIAMS and MCDONALD, JJ., concur.