eCases

 (quoting Prego v.
Hobart,

287 S.C. 116

, 118,

336 S.E.2d 725

, 726 (Ct. App. 1985)). On the other
hand, "[i]t is the duty of the court to sustain verdicts when a logical reason for
reconciling them can be found."

Id.

 at 49–50,

 (quoting Rhodes v.
Winn–Dixie Greenville, Inc.,

249 S.C. 526

, 530,

155 S.E.2d 308

, 310 (1967)).
Here, the general verdict form, in its entirety, clearly shows the jury's intent
to hold Fisher liable for the unreasonably dangerous products it sold to Duke (the
asbestos gaskets and packing) regardless of the theories on which Rita sought
recovery, especially when viewed in light of the circuit court's instructions to the
jury regarding products liability in general and the elements for each theory of
recovery, which we discuss in more detail below.
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. § 15-73-10

 (2005). "A products liability case may be brought under
several theories, including strict liability, warranty, and negligence." Small v.
Pioneer Mach., Inc.,

329 S.C. 448

, 462,

494 S.E.2d 835

, 842 (Ct. App. 1997).
[R]egardless 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.

Id.

 at 462–63, 494 S.E.2d at 842. "[U]nder a negligence theory, the plaintiff bears
the additional burden of demonstrating the defendant (seller or manufacturer) failed
to exercise due care in some respect, and, unlike strict liability, the focus is on the
conduct of the seller or manufacturer, and liability is determined according to fault."
Bragg v. Hi-Ranger, Inc.,

319 S.C. 531

, 539,

462 S.E.2d 321

, 326 (Ct. App. 1995).
Further, "liability 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 . . . ." Small, 329 S.C. at 466, 494 S.E.2d at 844.
Fisher cites Branham v. Ford Motor Co.,

390 S.C. 203

, 210,

701 S.E.2d 5

, 8
(2010), in support of its argument that the strict liability verdict "is a finding that
Fisher's product was not in a defective condition unreasonably dangerous to the
user." (Fisher's emphasis). However, it is speculative to attribute the strict liability
verdict to a specific finding regarding the product's condition because the strict
liability theory of recovery has two other elements that the jury could have
determined were not present. See supra. Nonetheless, it appears the jury found one
of the three elements of strict liability was missing, and all three of these elements
are also required for a negligence claim. See supra. Although the facts in Branham
are distinguishable from the facts in the present case, our supreme court's analysis in
that case is instructive.
In Branham, the circuit court concluded that as a matter of law, the product at
issue was not in a defective condition and, therefore, declined to send the plaintiff's
strict liability claim to the jury. Id. at 210,

701 S.E.2d at 8

. Our supreme court held
that the circuit court should have also dismissed the plaintiff's negligence claim
because that claim also included the product's defective condition as an element. Id.
at 212,

701 S.E.2d at 9

. The court stated, "When an element common to multiple
claims is not established, all related claims must fail." Id. at 210,

701 S.E.2d at 8

(emphasis added).
Rita cites Bragg v. Hi-Ranger, Inc. for the following proposition: "Strict
liability and negligence are not mutually exclusive theories of recovery; that is, an
injury may give rise to claims that can be established either under principles of strict
liability or negligence, and failure to prove one theory does not preclude proving the
other."

319 S.C. 531

, 539,

462 S.E.2d 321

, 326 (Ct. App. 1995). In Bragg, this
court affirmed the circuit court's refusal to direct a verdict on the plaintiff's
negligence claims despite affirming the circuit court's directed verdict as to the
plaintiff's strict liability claim.

Id.

 at 537–47, 462 S.E.2d at 325–30. This court
illustrated its reasoning with cases from other jurisdictions, including Bilotta v.
Kelley Co.,

346 N.W.2d 616

 (Minn. 1984) and Bigham v. J.C. Penney Co.,

268 N.W.2d 892

 (Minn. 1978). In Bilotta, the Supreme Court of Minnesota explained,
"Whether strict liability or negligence affords a plaintiff the broader theory of
recovery will depend largely on the scope of evidence admitted by the trial court and
on the jury instructions given under each theory . . . ." Bragg, 319 S.C. at 540, 462
S.E.2d at 326 (quoting 346 N.W.2d at 622). In Bigham,
the Supreme Court of Minnesota held the jury's findings
that the [plaintiff's] work clothes were not "in a defective
condition unreasonably dangerous to the plaintiff" and that
[the defendant] breached neither an expressed nor implied
warranty, but was nevertheless causally negligent, were
not irreconcilable where there were no warning tags with
respect to the flammability of the work clothes. The strict
liability instructions required the jury to assess a defect
dangerous to the ordinary consumer, whereas the
[plaintiff] lineman's work subjected him to fire hazards.
Therefore, while the failure to warn of the flammable
characteristics of the clothing was negligent as to the
plaintiff, those characteristics did not necessarily render
the clothing "defective and unreasonably dangerous"
toward an ordinary consumer not exposed to unusual fire
hazards. Thus, the Court concluded that "the claimed
inconsistencies in the verdict could be resolved to read
that the work clothing was not 'defective' because it was
not unreasonably dangerous to the average consumer, but
that [the defendant] was negligent in selling it without
warnings of its flammability."
Bragg, 319 S.C. at 541, 462 S.E.2d at 327 (emphases added) (citations omitted)
(quoting Bigham, 268 N.W.2d at 896–98).
However, in Branham, our supreme court counseled:
While we agree that strict liability and negligence are not
mutually exclusive theories of recovery, we caution
against a broad reading of Bragg in this regard. An
analytical framework that turns solely on whether strict
liability and negligence are mutually exclusive theories of
recovery may miss the mark. As noted, the negligence
claim must have a fault-based element, which is not
required for a strict liability claim. Where one claim is
dismissed and a question arises as to the continuing
viability of the companion claim, the critical inquiry is to
ascertain the basis for the dismissal. If one claim is
dismissed and the basis of the dismissal rests on a common
element shared by the companion claim, the companion
claim must also be dismissed.

390 S.C. at

211–12,

701 S.E.2d at 9

 (emphasis added). Fisher argues that the basis
for the jurors' rejection of Rita's strict liability claim was a finding that Fisher's
product was not unreasonably dangerous to the user. However, as we previously
stated, this is speculative.
Rita also argues that in the present case, the circuit court's instructions to the
jury concerning negligence presented it as "a broader theory of recovery than strict
liability," and therefore, the verdicts for strict liability and negligence may be
reconciled.5 Rita specifically cites the following language that the circuit court
included in its instruction on negligence but did not include in its strict liability
instruction:
A manufacturer who incorporates a defective component
or part into its finished product and places the finished
product in the stream of commerce is liable for injuries
caused by defects in the component part. A defendant
cannot, however, be liable for an allegedly defective
product that it did not design, recommend, specify, require,
manufacture, sell, or place in the stream of commerce.
(emphases added). Rita contends this language is "much broader than the strict
liability instruction that the plaintiff must show that 'the product was defective and
unreasonably dangerous when placed in the stream of commerce.'"6 We agree that
5
Fisher has not assigned error to any of the jury instructions given by the circuit
court in this case. To the contrary, Fisher assigns error to the circuit court's omission
of certain requested instructions, which we address below.
6
The language cited from the strict liability instruction is
If the products were defective and unreasonably dangerous
when they left the defendant's hands, the defendant is
liable even if all reasonable care was used in making and
selling the products and even if the plaintiff did not buy
the product from any of the defendants or enter in any
contract with the defendant because the plaintiffs do not
if the jurors understood "the product" to be Fisher's valves rather than the asbestos
gaskets themselves, they could perceive the above instruction to provide more
flexibility than the strict liability instruction given because it would allow them to
consider the gaskets as a component of Fisher's valves. Also, the presence of the
words "recommend" and "specify" in the above instruction provides an additional
basis for negligence liability that was not present (and should not have been present)
in the circuit court's strict liability instruction—Fisher recommended asbestos
gaskets as an option for use on their valves' external flanges even though they did
not sell those particular gaskets.
These differences in the jury instructions for strict liability and negligence
provide a logical reason for reconciling the verdicts on these claims. Having been
presented with two additional considerations during the negligence instruction, i.e.,
a product's defective components and a defendant's product recommendation, the
jurors had more flexibility in applying the circuit court's negligence instruction than
it did in applying the circuit court's strict liability instruction. Further, the jurors'
question concerning strict liability indicates they were struggling with that concept.
Yet they had the benefit of the circuit court's instruction that Rita was not required
to prove all three theories, i.e., strict liability, negligence, and breach of warranty, to
recover from Fisher. They also had the benefit of the instruction that the focus in
evaluating a strict liability claim is on the product and the focus in evaluating a
negligence claim is on the defendant's conduct.
Moreover, the jurors' punitive damages award and finding for Rita on the
breach of warranty claim (in addition to their finding for Rita on the negligence
claim) clearly indicates their intent to hold Fisher accountable for Tommy's deadly
exposure to the asbestos components of its valves and for its recommendation to use
asbestos gaskets on the valves' external flanges.
Therefore, we conclude that the circuit court acted within its discretion in
denying Fisher's new trial motion on the ground of inconsistent verdicts. See Austin,

387 S.C. at

49–50,

 ("It is the duty of the court to sustain verdicts
when a logical reason for reconciling them can be found." (quoting Rhodes, 249 S.C.
have to show negligence under the theory of strict liability.
The plaintiffs must only prove the product was defective
and unreasonably dangerous when it was placed in the
stream of commerce.
(emphasis added).
at 530,

155 S.E.2d at 310

)); id. at 49,

 ("Whether to grant a new
trial is a matter within the discretion of the trial judge, and this decision will not be
disturbed on appeal unless it is unsupported by the evidence or is controlled by an
error of law.").
II.    Expert Testimony
Next, Fisher assigns error to the admission of testimony from Rita's causation
experts on the grounds that (1) the testimony was unreliable and (2) it violated Rule
403, SCRE. Fisher also asserts that in the absence of this testimony, there was
insufficient evidence of proximate cause and, therefore, the circuit court should have
granted its JNOV motion. We will address these arguments in turn.
"The admission or exclusion of evidence is a matter within the [circuit] court's
sound discretion, and an appellate court may only disturb a ruling admitting or
excluding evidence upon a showing of a 'manifest abuse of discretion accompanied
by probable prejudice.'" Thompson v. Swicegood,

430 S.C. 648

, 661,

845 S.E.2d 920

, 926–27 (Ct. App. 2020) (quoting Burke v. Republic Parking Sys., Inc.,

421 S.C. 553

, 558,

808 S.E.2d 626

, 628 (Ct. App. 2017)). "An abuse of discretion occurs
when the conclusions of the trial court either lack evidentiary support or are
controlled by an error of law." Id. at 661, 845 S.E.2d at 927 (quoting Burke, 421
S.C. at 558, 808 S.E.2d at 628); see also Haselden v. Davis,

341 S.C. 486

, 497,

534 S.E.2d 295

, 301 (Ct. App. 2000) ("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."). We will now address what the law requires to establish
causation in an asbestos case.
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). "Proximate cause requires proof
of both causation in fact and legal cause, which is proved by establishing
foreseeability."

 at 116–17,

588 S.E.2d at 95

. "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." Small, 329 S.C. at 464,
494 S.E.2d at 843.
Further, to account for multiple possible sources of the plaintiff's exposure to
asbestos in a workplace setting, the law requires the plaintiff to show "more than a
casual or minimum contact with the product"7 yet stops short of requiring the
plaintiff to eliminate causation from all possible sources other than the defendant's
product.8 This compromise in the jurisprudence governing asbestos litigation has
been labeled "the substantial factor test," and it has been adopted in most United
States jurisdictions:9 If the plaintiff can show his "exposure to a specific product on
a regular basis over some extended period of time in proximity to where [he] actually
worked," the jury may draw from the circumstantial evidence a reasonable inference
of that product's "substantial causation" of the plaintiff's illness. Henderson v. Allied
Signal, Inc.,

373 S.C. 179

, 185,

644 S.E.2d 724

, 727 (2007); see also Lohrmann, 782
F.2d at 1158, 1162 (applying Maryland law to a pipefitter's products liability claims
7
Lohrmann v. Pittsburgh Corning Corp.,

782 F.2d 1156

, 1162 (4th Cir. 1986).
8
See 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, 658–59 (2017) (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); David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 BROOK.
L. REV. 51, 52 (2008) ("[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."); id. at 55
("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."); see also Rost v. Ford Motor Co.,

151 A.3d 1032

,
1050–51 (Pa. 2016) ("[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)).
9
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].");

 at 171 n.3 (listing jurisdictions
adopting the Lohrmann test).
and restating Maryland's substantial factor test: "To establish proximate
causation . . . , 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)).
By eliminating the "but for" requirement for proximate cause applied in
traditional tort cases, our asbestos jurisprudence has recognized it as an "insuperable
barrier to many deserving plaintiffs"10 while still requiring the plaintiff to show
"more than a casual or minimum contact with the product,"11 thereby "absolving
defendants who were not responsible for plaintiffs' injuries."12 In other words:
Courts, building on the Restatement (Second) of Torts,
have concluded that plaintiffs must provide sufficient
evidence for a jury to conclude that exposure to the
defendant's asbestos or asbestos-containing product was a
"substantial factor" in promoting the disease. As the
comments to the Restatement (Second) note, if other
actors' conduct is the predominant factor in bringing the
harm at issue, then a defendant's action is not a "substantial
factor" in causing the harm, and thus it is not the legal
cause of the harm.
Asbestos plaintiffs have faced the problem that in most
cases they were exposed to asbestos many years earlier
and are unable to prove with any precision how much
exposure they received from any particular defendant's
products. Given that this could prove an insuperable
barrier to many deserving plaintiffs, courts have
overwhelmingly held that proximate cause in the asbestos
context should be considered in light of the "frequency,
regularity, proximity test" pioneered by the Fourth Circuit
Court of Appeals in [Lohrmann]. This test attempts to
reduce the evidentiary burden on plaintiffs while still
absolving defendants who were not responsible for
plaintiffs' injuries.
10
Bernstein, 74 BROOK. L. REV. at 55.
11
Lohrmann,

782 F.2d at 1162

.
12
David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 BROOK. L.
REV. 51, 56 (2008).
David E. Bernstein, Getting to Causation in Toxic Tort Cases, 74 BROOK. L. REV.
51, 55–56 (2008) (footnotes omitted).
When the exposure occurred in an occupational setting, only the individual
who contracted mesothelioma, or his co-workers, can provide the evidence
necessary to meet the substantial factor test—an expert on medical causation will
not purport to substitute his testimony on the science of medical causation for the
legal standard that only evidence of the individual's occupational history can meet.
See Rost, 151 A.3d at 1045 ("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."). As
we explain below, the expert testimony in the present case reliably established
medical causation, and the lay testimony provided the information necessary to meet
the substantial factor test.
A. Admissibility
1. Reliability
Fisher asserts that both of Rita's medical causation experts testified that all
asbestos exposures are the cause of a person's mesothelioma and this testimony does
not meet 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").13 We disagree with Fisher's
characterization of the expert testimony.
Rita presented the testimony of Dr. Arnold Brody, a cell biologist,14 and Dr.
Arthur Frank, a physician specializing in occupational medicine.15 Dr. Brody
testified concerning how the inhalation of asbestos causes mesothelioma. As to
latency periods,16 Dr. Brody stated that most of them are from 30 to 50 or 60 years.
Dr. Brody also stated that the consensus "among scientists who understand the
literature is that all of the asbestos [fiber] varieties . . . cause mesothelioma."
Additionally, he explained that whether an individual develops mesothelioma
from his or her exposure depends on that individual's personal susceptibility based
13
See also State v. Phillips,

430 S.C. 319

, 334,

844 S.E.2d 651

, 658 (2020)
(referencing the discussion in Council regarding the circuit court's gatekeeping role
in determining the admissibility of expert testimony and its "responsibility to ensure
the expert testimony meets the requirements of Rules 702 and 403[, SCRE].");

id.

 at
335 n.7, 844 S.E.2d at 659 n.7 (coining the phrase "Daubert/Council hearing" but
neither departing from the Council standard for determining the reliability of
scientific evidence nor explicitly adopting the standard set forth in Daubert v.
Merrell Dow Pharm., Inc.,

509 U.S. 579

 (1993)).
14
Dr. Brody is also an experimental pathologist, and he is a professor emeritus in
the pathology department at Tulane University School of Medicine. For fifteen
years, Dr. Brody worked at the National Institute of Environmental Health Sciences,
which was "involved in understanding how agents in the environment cause human
disease," and he spent almost his whole career studying asbestos. He has spoken
internationally about asbestos on several occasions; written over 150 peer-reviewed
papers, most of which address asbestos; and testified as an expert in numerous cases
nationwide on how asbestos causes disease. See, e.g., Startley v. Welco Mfg. Co.,

78 N.E.3d 639

 (Ill. App. 2017).
15
Dr. Frank also has a doctorate in biomedical sciences. He has been a professor at
Drexel University and other colleges and a consultant to federal agencies and private
employers. He has published hundreds of peer-reviewed articles and 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.
16
According to Dr. Brody, a latency period spans from the time of an individual's
first exposure to a substance until he becomes ill as a result of all of his exposures
to that substance.
on the response of his or her genetic defenses, and according to many government
agencies, there is no known exposure level above background levels that is known
to be safe. Dr. Brody described background levels of asbestos in the following
manner:
[W]e all have some asbestos in our lungs, not enough to
cause disease, but as we walk around every day in our
environment, wherever we live, there's what's called an
ambient exposure. Ambient air is just what's all around
us. And there are a few fibers sitting out in the air from
products that release asbestos over the years or naturally
occurring asbestos that may get in the air. And we inhale
that asbestos over time.
Dr. Brody also explained that "cumulative dose" means the dose of a substance that
enters and accumulates in the lungs over time, and that a cumulative dose is what
causes disease. He testified that all exposures to that particular substance "contribute
to the likelihood of getting a disease." (emphasis added).
Later, Dr. Frank testified, stating that (1) all of the varieties of asbestos fibers
"can cause all of the [asbestos] diseases" and (2) this fact is well-established in the
medical community. Dr. Frank explained that as an individual's cumulative dose
increases, his risk of disease increases. He also testified that to establish a medical
connection between asbestos exposure and the development of mesothelioma, three
criteria must be met: (1) documentation of asbestos exposure; (2) a latency period
of at least ten years; and (3) a proper diagnosis.
After having reviewed Tommy's medical records, Dr. Frank stated, "There's
no question in this case that [Tommy] had [] mesothelioma." He also stated that the
body of literature about the level of asbestos emitted when asbestos 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,
showing models from 2.1 to 31 fibers per cubic centimeter.17 He explained that these
levels could be as high as a million times more than background exposures.
Dr. Frank also explained that even high levels of asbestos fibers cannot be
seen, and therefore, if one can see dust emanating from an asbestos product, "it's
very likely that that dust is exceeding allowable levels" and "that's when you should
17
Dr. Frank explained that a cubic centimeter is "about the size of a sugar cube."
particularly worry." Dr. Frank further testified that over the course of a year,
repeated exposure at even the current permissible exposure limit presents a
mesothelioma risk. According to Dr. Frank, OSHA's legal limit of exposure over an
eight-hour working day is one-tenth of one fiber per cubic centimeter.
Dr. Frank acknowledged that many scientific organizations have indicated
there is no known safe level of exposure to asbestos: "Outside the world of litigation,
there is no entity that I know of, no persons, no organizations that would say that
they can identify a safe[] level of exposure to asbestos." He explained that even at
low levels of exposure, there is a risk for developing mesothelioma. Based on the
evidence of Tommy's occupational exposure, Dr. Frank concluded that during
Tommy's years working as an instrument technician 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 Fisher valves using wire brushes and power grinders
were a significant cause of Tommy's mesothelioma. He stated that if Fisher valves
had been the only source of Tommy's repeated exposures to asbestos during his
entire life, that would have been sufficient to cause his mesothelioma.
Additionally, the affidavit of Dr. Frank was admitted into evidence. In his
affidavit, Dr. Frank noted that over fifty countries have banned the use of all forms
of asbestos. He also stated that a person's "cumulative exposure to asbestos
contributes to the total dose of asbestos" and "[t]he total cumulative exposure
combines to raise the risk of disease and ultimately, in someone with the disease, to
cause a patient's mesothelioma." He stressed:
These are my medical and scientific opinions. I am not
offering legal opinions about whether an exposure is
"significant" or "substantial" within the meaning of the
law. I can only offer opinions about the medical and
scientific significance of an exposure. Again, it must be
remembered that an "exposure" is never a single fiber; as
discussed throughout this affidavit, when someone
breathes visible dust from an asbestos product, there may
be millions or billions of asbestos fibers present.
(emphasis in original).
Fisher maintains that the expert testimony is unreliable because it employed
the "each and every exposure" theory of causation, which espouses the view that
"'each and every breath' of asbestos is substantially causative of mesothelioma."18
However, Rita's experts relied on the cumulative dose theory, and their reliance on
basic medical facts in reaching their opinion is not the equivalent of testifying that
"each and every exposure" was a substantial factor in causing Tommy's
mesothelioma.19
18
See Rost, 151 A.3d at 1044 ("[E]xpert testimony based upon the notion that 'each
and every breath' of 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").
19
This distinction was also made in Rost, 151 A.3d at 1045–46; 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 "all 'significant' exposures to asbestos 'contribute to cause
mesothelioma'");

 (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.");

 ("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.");

 (stating that the expert's opinion "was
Further, the cumulative dose theory on which Rita's experts relied easily meets
the legal standard for reliability. As to items (1) and (2) of the Council factors for
determining reliability (publications, peer review, and prior application of the
method to the type of evidence involved in the case), 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) (quality control procedures used
to ensure reliability), 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. Dr. Frank 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) (consistency of the method with recognized scientific laws and
procedures), 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 noted that
occupational and environmental epidemiology "is a blunt instrument and is not, in
most cases, well suited to examining precise dose-response relationships."
also based on an extensive knowledge of the facts in [the] case and was supported
by scientific literature").
(emphasis added). Dr. Frank stated, "When examining the question of causation of
sentinel diseases like mesothelioma[,]20 the scientific community recognizes case
reports and case series reports are useful and valid tools."
We view the testimony concerning cumulative dose as background
information essential for the jury's understanding of medical causation, which must
be based on science. This presentation was not an attempt to supplant the
Henderson/Lohrmann test.21 Further, Dr. Frank supplemented this background
information with his assessment of the probable level of exposure, 2.1 to 31 fibers
per cubic centimeter, for each asbestos gasket removal Tommy was in close
proximity to. He further explained that this level is millions of times higher than
background exposure. Both of Rita's experts were guided by the facts specific to
Tommy's occupational exposure to Fisher's products in forming their opinions
concerning causation. Further, Dr. Frank routinely relies on the following factors in
examining a specific case:
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).
Based on the foregoing, we conclude that only when the science of cumulative
exposure is distorted through the lens of the inapt "but for" analysis can it be viewed
as unreliable. In any event, Fisher has failed to show there is a reasonable probability
20
According to Dr. Frank's affidavit, a sentinel event is "a case of disease that, when
it appears, signals the need for action."
21
See Henderson,

373 S.C. at 185

644 S.E.2d at 727

 ("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." (quoting
Lohrmann,

782 F.2d at

1162–63)).
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.").
Nothing in the testimony of Rita's experts indicates they were seeking to
substitute their opinions on the science underlying mesothelioma for the legal
standard on causation. Further, the circuit court instructed the jury, in pertinent part,
Under any products liability theory of recovery, strict
liability, negligence, or breach of warranty, the plaintiff
must establish that the product defect was a proximate
cause of the injuries sustained. The plaintiff must prove
that the plaintiff's exposure to the defendants' asbestos
product was of such a frequency, regularity, and duration
that it was a substantial factor in bringing about the
disease or injury. . . .
(emphasis added).
With 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 asbestos exposure and the legal
standard for establishing causation in the face of multiple possible sources of the
plaintiff's exposure. Therefore, any possible presence of unreliable information in
isolated portions of the expert testimony would have paled in comparison to the lay
testimony concerning Tommy's occupational history.
2. Rule 403
"Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the issues,
or misleading the jury, or by considerations of undue delay, waste of time, or
needless presentation of cumulative evidence." Rule 403, SCRE. "Evidence is
unfairly prejudicial if it has an undue tendency to suggest a decision on an improper
basis . . . ." Matter of Campbell,

427 S.C. 183

, 193,

830 S.E.2d 14

, 19 (2019)
(quoting State v. Wilson,

345 S.C. 1

, 7,

545 S.E.2d 827

, 830 (2001)). "The
determination of prejudice must be based on the entire record and will generally turn
on the facts of each case." Campbell, 427 S.C. at 193, 830 S.E.2d at 19. Further,
only exceptional circumstances justify reversing the circuit court's decision on this
ground. State v. Huckabee,

419 S.C. 414

, 423,

798 S.E.2d 584

, 589 (Ct. App. 2017).
The same reasons for our conclusion that the challenged expert testimony was
reliable compel us to conclude that this evidence does not tend to mislead the jury
or suggest a decision on an improper basis and, therefore, there was no danger of
unfair prejudice to Fisher. Only when the science of cumulative exposure is
distorted through the lens of the inapt "but for" analysis can it viewed as misleading,
confusing, or unfair to defendants. Therefore, the circuit court acted within its
discretion in rejecting Fisher's argument that the testimony required exclusion
pursuant to Rule 403. See Rule 403, SCRE ("Although relevant, evidence may be
excluded if its probative value is substantially outweighed by the danger of unfair
prejudice, confusion of the issues, or misleading the jury, or by considerations of
undue delay, waste of time, or needless presentation of cumulative evidence."
(emphasis added)); Huckabee, 419 S.C. at 423, 798 S.E.2d at 589 (indicating that
only exceptional circumstances justify reversing the circuit court's decision on this
ground);

Thompson, 430

 S.C. at 661, 845 S.E.2d at 926–27 ("The admission or
exclusion of evidence is a matter within the trial court's sound discretion, and an
appellate court may only disturb a ruling admitting or excluding evidence upon a
showing of a 'manifest abuse of discretion accompanied by probable prejudice.'");
see also Haselden, 341 S.C. at 497, 534 S.E.2d at 301 ("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.").
B. Sufficiency of Causation Evidence
Because the expert testimony on causation was properly admitted into
evidence, we reject Fisher's argument that Rita's evidence of 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 v. Caterpillar, Inc.,

355 S.C. 316

, 320,

585 S.E.2d 272

, 274 (2003) ("In considering a JNOV, the [circuit court] is concerned
with the existence of evidence, not its weight.");

 ("The jury's verdict must be
upheld unless no evidence reasonably supports the jury's findings."); Williams
Carpet Contractors, Inc. v. Skelly,

400 S.C. 320

, 325,

734 S.E.2d 177

, 180 (Ct. App.
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.");

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).
In addition to the expert testimony showing medical causation, the lay
testimony meets Henderson's substantial factor test. In a nutshell, for at least 15
years, Tommy's work regularly required him to be within close proximity to co-
workers' removal of asbestos gaskets and packing from numerous Fisher valves, and
he would have breathed the visible asbestos dust from this process. See Henderson,

373 S.C. at 185

644 S.E.2d at 727

 ("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." (quoting Lohrmann,

782 F.2d at

1162–63)).
III.   Jury Instructions
Fisher contends the circuit court erred in declining to instruct the jury on the
sophisticated intermediary doctrine, intervening cause, and the unavailability of
punitive damages in breach of warranty claims. We will address each of these
proposed instructions in turn, but first we consider the law concerning jury
instructions in general.
"An appellate court will not reverse the trial court's decision regarding jury
instructions unless the trial court abused its discretion." Clark v. Cantrell,

339 S.C. 369

, 389,

529 S.E.2d 528

, 539 (2000). "An abuse of discretion occurs when the trial
court's ruling is based on an error of law or, when grounded in factual conclusions,
is without evidentiary support."

 "When instructing the jury, the trial court is
required to charge only principles of law that apply to the issues raised in the
pleadings and developed by the evidence in support of those issues." Id. at 390,

. "Furthermore, the trial court is required to charge only the current
and correct law of South Carolina."

"In reviewing jury charges for error, we must consider the court's jury charge
as a whole in light of the evidence and issues presented at trial." State v. Marin,

415 S.C. 475

, 482,

783 S.E.2d 808

, 812 (2016) (quoting State v. Brandt,

393 S.C. 526

,
549,

713 S.E.2d 591

, 603 (2011)). "The substance of the law is what must be
instructed to the jury, not any particular verbiage."

 (quoting State v. Smith,

315 S.C. 547

, 554,

446 S.E.2d 411

, 415 (1994)).
Accordingly, a refusal to give a requested instruction stating a sound principle
of law applicable to the case at hand constitutes reversible error only when "the
principle is not otherwise included in the charge." Clark,

339 S.C. at 390

. Further, "the [circuit] court is not required to instruct the jury on a principle
of law that is irrelevant to the case as proved."

 "Moreover, even if the [circuit]
court erred in failing to give a requested instruction, the requesting party also must
show that the error was prejudicial to warrant reversal on appeal." Id.; see also
Pittman v. Stevens,

364 S.C. 337

, 340,

613 S.E.2d 378

, 380 (2005) ("A trial court's
refusal to give a properly requested charge is reversible error only when the
requesting party can demonstrate prejudice from the refusal.").
A. Sophisticated Intermediary Doctrine
Fisher asserts that the circuit court should have charged the jury on the
sophisticated intermediary doctrine because there was sufficient evidence to show
that (1) Duke should have been aware of the danger associated with asbestos gaskets
and (2) it was reasonable for Fisher to rely on Duke to warn its employees of this
danger.22 In our view, the evidence in the present case is insufficient to require a
jury instruction on this doctrine.
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
"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).
Here, the gravity of the risks of lung cancer and death resulting from the
inhalation of friable asbestos could not have been greater. Further, Fisher has not
shown that placing a written warning on the outside of their valves or on the
replacement gaskets it sold to Duke would have been infeasible or ineffective.
Therefore, we are not convinced that these circumstances made it reasonable for a
supplier of asbestos gaskets to rely on Duke to relay warnings to its employees. See
id.; Duckett,

 ("[T]he appellant carries the burden
of convincing this [c]ourt that the [circuit] court erred.").
good chance asbestos dust is present wherever old
insulation is being removed.
Nonetheless, Fisher contends that it was reasonable to rely on Duke to comply with
occupational safety laws because Duke "should have been aware of the alleged
dangers of asbestos-containing gaskets."
Moreover, 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 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)).23
Rita maintains that Fisher introduced no evidence that it actually relied on
Duke to warn its employees about the danger of asbestos gaskets , and Fisher has not
cited any evidence to that effect in its briefs. In fact, the testimony of Fisher's
corporate representative, Ronald Dumistra, indicates that Fisher could not have
relied on Duke to convey warnings to its employees because Fisher did not consider
asbestos gaskets to be a health risk. In other words, Fisher's belief that asbestos
gaskets posed no health risk is inconsistent with Fisher's claim that it relied on Duke
to warn Tommy of the dangers of asbestos gaskets.
Based on the foregoing, Fisher has not carried its burden of convincing this
court that the circuit court should have instructed the jury on the sophisticated
intermediary doctrine. See Clark,

339 S.C. at 389

 ("When
instructing the jury, the trial court is required to charge only principles of law that
apply to the issues raised in the pleadings and developed by the evidence in support
of those issues." (emphasis added)); id. at 390,

 ("[T]he trial court
is not required to instruct the jury on a principle of law that is irrelevant to the case
as proved." (emphasis added)); Duckett,

 ("[T]he
appellant carries the burden of convincing this [c]ourt that the [circuit] court erred.").
23
See also Lawing,

415 S.C. at

225–26, 781 S.E.2d at 557 ("[T]he sophisticated user
doctrine, which arose from comment n to section 388 of the Restatement (Second)
of Torts, recognizes that a supplier may rely on an intermediary to provide warnings
to the ultimate user if the reliance is reasonable under the circumstances. The
sophisticated user doctrine is typically applied as a defense to relieve the supplier of
liability for failure to warn where it is difficult or even impossible for the supplier to
meet its duty to warn the end user of the dangers associated with the use of a product,
and the supplier therefore relies on the intermediary or employer to warn the end
user." (emphases added) (citation omitted) (footnote omitted)). Fisher did not show
that it was difficult to warn Duke employees of the danger associated with the
removal of asbestos gaskets from its valves or from the valves' external flanges.
B. Superseding Cause
Next, Fisher asserts that the circuit court should have charged the jury on
superseding cause because there was sufficient evidence to support such a charge
and the foreseeability of the intervening acts of third parties was a fact question for
the jury. Specifically, Fisher asserts a superseding cause charge was supported by
evidence of (1) Duke's negligent failure to warn employees that friable asbestos was
released from asbestos gaskets during the process of removing them from the valves'
components or from their external flanges and (2) the existence of non-Fisher
sources of asbestos dust in Tommy's workplace.
"The defendant's negligence does not have to be the sole proximate cause of
the plaintiff's injury; instead, the plaintiff must prove the defendant's negligence was
at least one of the proximate causes of the injury." Roddey v. Wal-Mart Stores E.,
LP,

415 S.C. 580

, 590,

784 S.E.2d 670

, 676 (2016). "An intervening force may be
a superseding cause that relieves an actor from liability, but for there to be relief
from liability, the intervening cause must be one that could not have been reasonably
foreseen or anticipated."

 (emphasis added). "In other words, the intervening
negligence of a third party will not excuse the first wrongdoer if such intervention
ought to have been foreseen in the exercise of due care."

 "In such case, the
original negligence still remains active[] and a contributing cause of the injury."

(quoting Bishop v. S.C. Dep't of Mental Health,

331 S.C. 79

, 89,

502 S.E.2d 78

, 83
(1998)).24
We agree with Fisher that foreseeability is normally a fact question for the
jury. See Steele v. Rogers,

306 S.C. 546

, 551,

413 S.E.2d 329

, 332 (Ct. App. 1992)
("Ordinarily, foreseeability is a question of fact to be decided by the jury.").
However, for Fisher's superseding cause defense to be successful, it would have to
convince the jury that it was unforeseeable for (1) Duke to fail to warn Tommy that
friable asbestos was released from asbestos gaskets during the process of removing
24
The Roddey opinion also has language that does not fit asbestos cases in which the
"but for" requirement of causation has been relaxed: "Accordingly, if the
intervening acts are set into motion by the original wrongful act and are the
foreseeable result of the original act, the 'final result, as well as every intermediate
cause, is considered in law to be the proximate result of the first wrongful cause.'"
415 S.C. at 590–91,

784 S.E.2d at 676

 (emphasis added) (quoting Wallace v. Owens–
Ill., Inc.,

300 S.C. 518

, 521,

389 S.E.2d 155

, 157 (Ct. App. 1989)).
them from the valves' components or from their external flanges and (2) there to be
non-Fisher sources of asbestos dust within Tommy's workplace. We view this case
as one of those "rare or exceptional" cases in which the circuit court properly
determined that, as a matter of law, both of these circumstances were foreseeable.
See Gause v. Smithers,

403 S.C. 140

, 150,

742 S.E.2d 644

, 649 (2013) ("Only in rare
or exceptional cases may the issue of proximate cause be decided as a matter of law."
(quoting Bailey v. Segars,

346 S.C. 359

, 367,

550 S.E.2d 910

, 914 (Ct. App. 2001))).
When the circuit court made this determination, Fisher's own corporate
representative had already testified that Fisher considered the gaskets in its valves,
and the replacement gaskets it sold to Duke, to be safe once they left Fisher's supplier
because the asbestos in them was encapsulated. In light of its own failure to
anticipate the release of asbestos dust from grinding these gaskets, Fisher's claim
that it could not have foreseen Duke's similar oversight lacks credibility. Despite
Duke's obligation to comply with OSHA regulations, its unwitting noncompliance
was foreseeable as a matter of law. Further, it is unrealistic to infer from the
evidence that the existence of other sources of asbestos dust in Tommy's workplace
was unforeseeable.
Moreover, we are not convinced that Fisher was prejudiced by the circuit
court's failure to give a separate instruction on superseding cause. While instructing
the jury on proximate cause, the circuit court discussed foreseeability in the
following manner:
Plaintiffs must also prove something called "legal cause."
And that is proven by showing that the injury was
foreseeable. And that means the injury occurred as the
natural and probable consequence of defendants'
negligence.
The plaintiffs must prove that some injury from
defendants' negligence was foreseeable. But they do not
have to prove that the particular injury that occurred was
foreseeable.
However, the defendant cannot be held responsible for
something that could not be expected to happen. There's
more than one cause—there can be more than one cause.
Proximate cause does not mean the only cause. The
defendants' actions can be a proximate cause of plaintiff's
injury if defendants' conduct was at least one of the direct
causes of the injury. Where two or more causes combine
to produce the injury, [the] defendant is not relieved from
liability for negligence because it's only responsible for
one of the [causes]. It is sufficient that its negligence is a
proximate cause without which the injury would not have
resulted to a greater extent.
Consequently, if defendants' negligence is a proximate
cause of an injury to another, the fact that the negligence
of a third party occurred with its own -- that negligence of
a third party occurred with its own negligence to produce
the harm does not relieve it of liability. In such cases, each
wrongdoer is in breach of the duty of care over the
plaintiffs. And because the negligence of each occurred to
produce the injury, they can all be liable.
Under South Carolina law, a defendant is entitled to assert
that other persons or entities contributed to the alleged
injury or damage. The matter of others' alleged fault
causing the plaintiff's injury has been raised by the
defendant. It's proper for you to consider the actions of
others, but only so far as plaintiffs have met their burden
of proof.
(emphases added). Therefore, even if the foreseeability of third-party negligence
had been truly a question of fact in the present case, the above language advised the
jury that an unforeseeable intervening force relieves the defendant from liability.
See Clark,

339 S.C. at 389

 ("It is error for the trial court to refuse
to give a requested instruction which states a sound principle of law when that
principle applies to the case at hand, and the principle is not otherwise included in
the charge." (emphasis added)); State v. Marin,

415 S.C. 475

, 482,

783 S.E.2d 808

,
812 (2016) ("In reviewing jury charges for error, we must consider the court's jury
charge as a whole in light of the evidence and issues presented at trial." (quoting
State v. Brandt,

393 S.C. 526

, 549,

713 S.E.2d 591

, 603 (2011)));

 ("The substance
of the law is what must be instructed to the jury, not any particular verbiage."
(quoting State v. Smith,

315 S.C. 547

, 554,

446 S.E.2d 411

, 415 (1994))).
Based on the foregoing, we affirm the circuit court's ruling on this issue. See
Duckett,

 ("[T]he appellant carries the burden of
convincing this [c]ourt that the [circuit] court erred.").
C. Punitive Damages
Fisher also assigns error to the circuit court's failure to instruct the jury that it
was impermissible to award punitive damages on a breach of warranty claim. Fisher
asserts that this alleged error was reversible. We disagree.
First, even if we assumed that the circuit court should have given the requested
instruction, Fisher was not prejudiced by this omission because the jury found for
Rita on her negligence claim, which undoubtedly allows for a punitive damages
award if the jury also finds the defendant's conduct was willful, wanton, or reckless.
See Taylor,

324 S.C. at 221

479 S.E.2d at 46

 ("In order for a plaintiff to recover
punitive damages, there must be evidence the defendant's conduct was willful,
wanton, or in reckless disregard of the plaintiff's rights."); Carter v. Beals,

248 S.C. 526

, 534,

151 S.E.2d 671

, 675 (1966) (holding that causing a collision by violating
certain statutes constituted actionable negligence and would justify punitive
damages). Here, the jury found "by clear and convincing evidence" that Fisher's
conduct was "willful, wanton, or reckless." Therefore, for this reason alone, we
would affirm on this issue. See Pittman,

364 S.C. at 340

613 S.E.2d at 380

 ("A trial
court's refusal to give a properly requested charge is reversible error only when the
requesting party can demonstrate prejudice from the refusal.").
Additionally, we see no merit in the argument that the circuit court was
required to give the requested instruction. Although Fisher cites Rhodes v.
McDonald,

345 S.C. 500

, 504–05,

548 S.E.2d 220

, 222 (Ct. App. 2001), in support
of its argument, Rhodes does not stand for the proposition that the requested
instruction is required when the plaintiff's claims consist of a mix of tort and
warranty claims. Further, Fisher has not cited any case law that requires such a
specific instruction.
In Rhodes, the plaintiffs' claims against the defendants were breach of contract
and breach of the implied warranties of merchantability, habitability, and fitness for
a particular purpose.

345 S.C. at 501

, 505 n.8, 548 S.E.2d at 221, 223 n.8. On
appeal, the defendants assigned error to the circuit court's denial of their directed
verdict motion "as to the unavailability of punitive damages on the breach of implied
warranty claims." Id. at 503, 548 S.E.2d at 221. This court concluded that the circuit
court should not have submitted the issue of punitive damages to the jury and, thus,
reversed the punitive damages award. Id. at 503–05, 548 S.E.2d at 221–23. The
critical difference between Rhodes and the present case is that in Rhodes, none of
the plaintiffs' claims allowed for a punitive damages award and, in the present case,
the negligence claim allows for such an award.
Fisher asserts, "The parties and the trial court cannot assume the jury knew
this specific legal principle and analyzed only Fisher's negligence in awarding
punitive damages. The only way to prevent the jury from awarding punitive damages
for the breach of warranty claim was for the trial court to instruct the jury that the
law prohibits it." (emphases added). However, as unlikely as it would have been,
had the jury found for Rita on only the breach of warranty claim (rejecting her
negligence claim) and also awarded her punitive damages, the circuit court could
have easily cured the prejudice to Fisher by granting a JNOV as to the punitive
damages award. Further, the jury's focus should not have been on pigeonholing
Fisher's recklessness. Rather, in considering the issue of punitive damages, the jury's
sole focus should have been on whether there was clear and convincing evidence
that Fisher's misconduct was willful, wanton, or with reckless regard for Tommy's
rights. The jury should not have been expected to do more than simply follow this
standard.
Based on the foregoing, Fisher has not carried its burden of convincing this
court that the circuit court erred in declining to give the requested instruction. See
Duckett,

 ("[T]he appellant carries the burden of
convincing this [c]ourt that the [circuit] court erred."). Therefore, we affirm this
ruling.
IV.    Apportionment
A. Application of the South Carolina Contribution Among Joint
Tortfeasors Act
We affirm the circuit court's ruling on Fisher's apportionment arguments
pursuant to Rule 220(b), SCACR and the following authorities:

S.C. Code Ann. § 15-38-15

 (Supp. 2022) (allowing a defendant responsible for less than fifty percent
of total fault to assert liability against other potential tortfeasors); Burns v. State
Farm Mut. Auto. Ins. Co.,

297 S.C. 520

, 522,

377 S.E.2d 569

, 570 (1989) ("The
cardinal rule of statutory construction is that we are to ascertain and effectuate the
actual intent of the legislature."); State v. Johnson,

396 S.C. 182

, 188,

720 S.E.2d 516

, 520 (Ct. App. 2011) ("In interpreting a statute, the court will give words their
plain and ordinary meaning[] and will not resort to forced construction that would
limit or expand the statute."); S.C. Energy Users Comm. v. S.C. Pub. Serv. Comm'n,

388 S.C. 486

, 491,

697 S.E.2d 587

, 590 (2010) ("Under the plain meaning rule, it is
not the province of the court to change the meaning of a clear and unambiguous
statute. Where the statute's language is plain, unambiguous, and conveys a clear,
definite meaning, the rules of statutory interpretation are not needed and the court
has no right to impose another meaning." (citation omitted)); Singletary v. S.C. Dep't
of Educ.,

316 S.C. 153

, 162,

447 S.E.2d 231

, 236 (Ct. App. 1994) ("The intention of
the legislature must be gleaned from the entire section and not simply clauses taken
out of context." (emphasis added)); CFRE, LLC v. Greenville Cty. Assessor,

395 S.C. 67

, 74,

716 S.E.2d 877

, 881 (2011) (stating that a statute "must be read as a
whole and sections [that] are part of the same general statutory law must be construed
together and each one given effect" (emphasis added) (quoting S.C. State Ports Auth.
v. Jasper County,

368 S.C. 388

, 398,

629 S.E.2d 624

, 629 (2006)));

 ("We
therefore should not concentrate on isolated phrases within the statute.");

("Instead, we read the statute as a whole and in a manner consonant and in harmony
with its purpose.");

 ("In that vein, we 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))); Smith v. Tiffany,

419 S.C. 548

, 557,

799 S.E.2d 479

, 484 (2017)
("[T]he General Assembly took steps to protect nonsettling defendants by codifying
a nonsettling defendant's right to argue the so-called empty chair defense in
subsection (D) [of section 15-38-15].");

 ("[A] critical feature of the statute is the
codification of the empty chair defense—a defendant 'retain[s] the right to assert
another potential tortfeasor, whether a party or not, contributed to the alleged injury
or damages'—which necessarily contemplates lawsuits in which an allegedly
culpable person or entity is not a party to the litigation (hence the chair in question
being 'empty')." (first alteration added)).
B. Constitutional Violations
We affirm the circuit court's ruling on Fisher's constitutional arguments
pursuant to Rule 220(b), SCACR and the following authorities:

S.C. Code Ann. § 15-38-15

(D) (Supp. 2022) (codifying a defendant's right to argue the "empty chair"
defense);

S.C. Code Ann. § 15-38-50

(1) (2005) (allowing the application of a setoff
from settlement proceeds to a compensatory damages award); R.L. Jordan Co. v.
Boardman Petroleum, Inc.,

338 S.C. 475

, 478,

527 S.E.2d 763

, 765 (2000)
(indicating that the standard for whether legislation violates the substantive due
process protection afforded by Article I, section 3 of the South Carolina Constitution
is "[w]hether it bears a reasonable relationship to any legitimate interest of
government"); Worsley Companies, Inc. v. Town of Mount Pleasant,

339 S.C. 51

,
56,

528 S.E.2d 657

, 660 (2000) ("Substantive due process protects a person from
being deprived of life, liberty or property for arbitrary reasons.");

id.

 ("A plaintiff
must show that he was arbitrarily and capriciously deprived of a cognizable property
interest rooted in state law."); Fraternal Ord. of Police v. S.C. Dep't of Revenue,

352 S.C. 420

, 430,

574 S.E.2d 717

, 722 (2002) (recognizing that for purposes of equal
protection of the laws, "the determination of whether a classification is reasonable
is initially one for the legislature and will not be set aside by the courts unless it is
plainly arbitrary." (quoting Gary Concrete Products, Inc. v. Riley,

285 S.C. 498

, 504,

331 S.E.2d 335

, 338 (1985))); Denene, Inc. v. City of Charleston,

359 S.C. 85

, 91,

596 S.E.2d 917

, 920 (2004) ("If the classification does not implicate a suspect class
or abridge a fundamental right, the rational basis test is used.");

 ("Under the
rational basis test, the requirements of equal protection are satisfied when: (1) the
classification bears a reasonable relation to the legislative purpose sought to be
[e]ffected; (2) the members of the class are treated alike under similar circumstances
and conditions; and[] (3) the classification rests on some reasonable basis."); Doe v.
State,

421 S.C. 490

, 505,

808 S.E.2d 807

, 814 (2017) ("Those attacking the validity
of legislation under the rational basis test of the Equal Protection Clause have the
burden to negate every conceivable basis which might support it." (quoting Boiter v.
S.C. Dep't of Transp.,

393 S.C. 123

, 128,

712 S.E.2d 401

, 403–04 (2011))); Doctor
v. Robert Lee, Inc.,

215 S.C. 332

, 335,

55 S.E.2d 68

, 69 (1949) ("One who is injured
by the wrongful act of two or more joint [tortfeasors] has the option of bringing an
action against either one or all of them as [] defendants . . . . To allow a defendant
against the will of the plaintiff to bring in other joint [tortfeasors] as defendants
would deny the plaintiff the right to name whom he should sue."); Tiffany,

419 S.C. at 563

799 S.E.2d at 487

 ("[T]his right of the plaintiff to choose her defendant has
been recognized in South Carolina jurisprudence for almost two hundred years.");

 at 556–57,

799 S.E.2d at

483–84 (explaining the policy goals underlying the
legislature's enactment of the South Carolina Contribution Among Joint Tortfeasors
Act); Roschen v. Ward,

279 U.S. 337

, 339 (1929) ("A statute is not invalid under the
Constitution because it might have gone farther than it did, or because it may not
succeed in bringing about the result that it tends to produce."); Riley v. Ford Motor
Co.,

414 S.C. 185

, 196,

777 S.E.2d 824

, 830 (2015) (stating that the South Carolina
Contribution Among Joint Tortfeasors Act "represents the Legislature's
determination of the proper balance between preventing double-recovery and South
Carolina's 'strong public policy favoring the settlement of disputes.'" (quoting
Chester v. S.C. Dep't of Pub. Safety,

388 S.C. 343

, 346,

698 S.E.2d 559

, 560
(2010))); CFRE,

395 S.C. at 74

716 S.E.2d at 881

 (stating that a statute "must be
read as a whole and sections [that] are part of the same general statutory law must
be construed together and each one given effect" (quoting S.C. State Ports Auth.,

368 S.C. at 398

629 S.E.2d at 629

));

 ("[W]e read the statute as a whole and in a
manner consonant and in harmony with its purpose.").25
C. Public Policy
We affirm the circuit court's ruling on Fisher's public policy argument
pursuant to Rule 220(b), SCACR and the following authority: Tiffany,

419 S.C. at 559

799 S.E.2d at 485

 ("If the policy balance struck by the legislature in [the South
Carolina Contribution Among Joint Tortfeasors] Act is to be changed, that
prerogative lies exclusively within the province of the Legislative Branch.").
V.   Setoff
Fisher contends that the circuit court erred by declining to grant a setoff in the
full amount of Rita's settlement proceeds against the full amount of the jury's
compensatory damages award because (1) Rita's allocation of the proceeds was
unilateral and incomplete and (2) the circuit court failed to review the settlement
documents. We agree that the circuit court should review the settlement documents
and reconsider the respective amounts to be set off against the compensatory
damages awards for Rita's three claims.
"The right to setoff has existed at common law in South Carolina for over 100
years." Riley,

414 S.C. at 195

. "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.'"

 (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 . . . ."

Id.

 In particular, section
15-38-50 provides in pertinent part,
25
We do not reach Fisher's argument that it was deprived of its right "to have a jury
determine all triable issues" in violation of article I, section 14 of the South Carolina
Constitution. The circuit court did not rule on this argument, and Fisher did not file
a Rule 59(e) motion seeking the circuit court's ruling on it. Therefore, it is not
preserved for review. 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).
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 . . . 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."26 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-
26
We reject Fisher's assertion that Rita's wrongful death and survival claims seek
damages for a single injury. 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.") (emphasis added);

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.");

id.

 § 15-51-
20 ("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)); Riley,

 (affirming a setoff that conformed to the allocation of
damages between a wrongful death claim and a survival claim); Jolly, 435 S.C. at
670, 869 S.E.2d at 853 (explaining why wrongful death and survival are different
claims for different injuries despite the fact that they were created out of the same
set of facts); Widener, 397 S.C. at 473 n.1, 724 S.E.2d at 191 n.1 (citing Bennett v.
Spartanburg Railway, Gas & Electric Co.,

97 S.C. 27

, 29–30,

81 S.E. 189

, 189–90
(1914) for the proposition that wrongful death and survival actions are different
claims for different injuries).
settling defendant is entitled to credit for the amount paid by another defendant who
settles for the same cause of action." Riley,

414 S.C. at 195

(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." Widener, 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,

; see also Widener, 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, prior to trial, the circuit court issued an order approving the settlement
of Rita's wrongful death and survival claims against some of Fisher's co-defendants
pursuant to

S.C. Code Ann. § 15-51-42.27

 The circuit court also stated,
I approve the attorney's fees and expenses and the
distribution of 90 [percent] to the wrongful death claim
and 10 [percent] to the survival claim. In addition, all
future settlements in this case that are disbursed in the
same manner (attorney's fees and costs are deducted as
indicated above and the remaining is divided pursuant to
the heir agreement) are approved.28
27
Section 15-51-42(C)(1) provides that when "a wrongful death or survival action
has been filed in state court and . . . the settlement agreement between the parties is
reached before the matters reach trial, the personal representative shall petition the
court in which the wrongful death or survival action has been filed" seeking approval
of a proposed settlement.
28
The circuit court and the parties have interpreted this language to mean that 90
percent of the settlement proceeds was allocated to the wrongful death claim and 10
percent of the proceeds was allocated to the survival claim. Rita does not assert that
this allocation resulted from settlement negotiations with Fisher's co-defendants or
was stipulated by the written release of her claims, and there is nothing in the record
to indicate that the settling defendants agreed to any particular allocation of the
proceeds, as contemplated by section 15-38-50. However, we are not prepared to
reject the allocation approved by the circuit court solely on the ground that it was
The order indicated that Rita had not yet executed a release or received
settlement proceeds, and therefore, the circuit court was unable to review the
settlement documents before approving the settlement. After trial, Fisher filed a
motion for setoff and requested to view the settlement documents. In response, Rita
indicated that she had received a total of $2,805,000 in settlement proceeds. At the
motions hearing, the circuit court reviewed a document Rita's counsel prepared
showing a breakdown of what each settling defendant paid to Rita. However, the
hearing transcript indicates the circuit court did not review the settlement agreements
or releases. Instead, Rita's counsel represented to the circuit court that she had
released all of her claims against the settling defendants.
The circuit court ruled that the allocation of 90 percent of the proceeds to the
wrongful death claim was reasonable because Tommy had 14 more years of life
expectancy and died a very painful death. The court also ruled that Rita was "well
within [her] rights to allocate nothing to the loss of consortium." In its written order
addressing Fisher's post-trial motions, the circuit court stated that its pre-trial
approval of Rita's wrongful death and survival settlements "apportioned 90 [percent]
of the settlement proceeds to wrongful death and 10 [percent] to survival." The
circuit court determined that the setoff for wrongful death was $2,524,500, which
eclipsed the $1 million awarded to Rita for that claim. The circuit court also
determined that the setoff for the survival claim was $280,000.29 The circuit court
concluded that Fisher owed Rita "zero for wrongful death damages" and "$720,000
for survival damages." The circuit court also concluded that there was no setoff for
loss of consortium "as that claim was not settled pre-trial by any defendants,"30 and
the total amount Fisher was responsible for was $1,720,000, plus punitive damages.
"unilateral." Section 15-51-42 gives the circuit court authority to approve the
settlement of wrongful death and survival claims, and this authority necessarily
encompasses the allocation of the proceeds among those claims to effect a timely
distribution of the proceeds to the statutory beneficiaries. Nonetheless, we question
whether the pre-trial allocation among the two statutory claims may be incomplete
for purposes of a post-trial setoff against the respective damages awards for all three
claims given that Rita had also released the settling defendants from her claim for
loss of consortium.
29
Our calculation yields $280,500.
30
As previously stated, Rita's trial counsel represented to the circuit court that Rita
settled all of her claims against the settling defendants, and appellate counsel
confirmed this during oral arguments before this court.
Initially, we note that the circuit court had a responsibility to review the
settlement documents in camera to verify not only the amount of the settlement and
its terms but also whether it was "given in good faith." § 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:
(1) 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; and (2) it discharges the tortfeasor to whom it is given from
all liability for contribution to any other tortfeasor." (emphasis added)); Huck v.
Oakland Wings, LLC,

422 S.C. 430

, 438,

813 S.E.2d 288

, 292 (Ct. App. 2018)
(remanding a case to the circuit court to review a settlement agreement and
determine if a defendant was entitled to setoff). In Huck, this court held,
To determine if the nonsettling tortfeasor is entitled to a
setoff as a preliminary matter, the documents must be
reviewed to determine if their terms shield the settling
tortfeasor from the requirements of section 15-38-50(2).
Therefore, the court must review the documents to
determine the amount of the settlement and its terms.
Under section 15-38-50, the court also must determine if
the release or covenant was "given in good faith." Because
the trial court did not conduct such a review, we remand
the case for the trial court to look at the settlement
agreement and determine if [the nonsettling defendant] is
entitled to a setoff.

Id.

 Therefore, we are compelled to remand this issue for the circuit court's in camera
review of the settlement documents in accordance with Huck.
We also view the pre-trial allocation as potentially incomplete for purposes of
a post-trial setoff because it did not reflect any consideration necessarily given for
Rita's release of her loss of consortium claim. 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 . . . 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)); e.g., Sauner v. Pub. Serv. Auth.
of S.C.,

354 S.C. 397

, 406,

581 S.E.2d 161

, 166 (2003) ("The necessary elements of
a contract are an offer, acceptance, and valuable consideration."). This may be due
to the circuit court's stated assumption in its written orders that Rita did not release
her loss of consortium claim against the settling defendants.
We acknowledge that our case law favors a plaintiff's ability to apportion
settlement proceeds "in the manner most advantageous to [her]."

31 Riley, 414

 S.C.
at 197,

. However, we hesitate to read Riley too broadly. The
principle underlying the right to a setoff, avoiding a double recovery, still requires
the settlement of claims and allocation of the proceeds to be grounded in good faith.
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 . . . 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)).
As we read Riley, it appears that unlike the allocation in the present case, that
allocation was specified in the settlement documents as contemplated by section 15-
31
In Riley, our supreme court concluded that this court erred in reapportioning
settlement proceeds on the basis that the allocation to which the plaintiff and settling
defendants agreed "did not seem to be, in the court of appeals' view, proportionately
reasonable" and "may have been advantageous to the [plaintiff]."

777 S.E.2d at

830–31. The supreme court stated: "Indeed, we agree with the
approach taken by the Illinois Court of Appeals, which stated:
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.

414 S.C. at 197

 (quoting Lard v. AM/FM Ohio, Inc.,

901 N.E.2d 1006

, 1019 (Ill. App. 2009)).
38-50. Our supreme court reversed this court's re-allocation, concluding that this
court erred in disturbing the settling parties' agreement "solely because the
apportionment may have been advantageous to the [plaintiff]."

 (emphasis added)); see id. at 197,

 ("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 defendant]." (emphasis added)).
Further, nothing in Riley suggests that the circuit court has the discretion to
completely deny a setoff against a verdict for a particular claim after the plaintiff
receives funds from a co-defendant to settle the same claim. See Widener, 397 S.C.
at 472, 724 S.E.2d at 190 ("When the settlement is for the same injury, the
nonsettling defendant's right to a setoff arises by operation of law. Under this
circumstance, '[s]ection 15-38-50 grants the court no discretion . . . in applying a
[setoff].'" (citation omitted) (quoting Ellis v. Oliver,

335 S.C. 106

, 113,

515 S.E.2d 268

, 272 (Ct. App. 1999)). Rather, Riley indicates that the circuit court has discretion
as to merely the amount to be setoff against the verdict when the settlement involves
multiple claims.

 (stating that 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").
Unlike the allocation in Riley, the unilateral allocation in the present case did
not reflect any consideration given by the settling defendants for Rita's release of her
loss of consortium claim. As we previously stated, the circuit court may have simply
been under the impression that Rita did not release her loss of consortium claim
against the settling defendants. In any event, we recognize that the specific amount
to setoff against the compensatory damages award for loss of consortium is left to
the circuit court's discretion as the three claims released by Rita respectively seek
different types of damages and have different, overlapping beneficiaries.
Based on the foregoing, we remand for the circuit court's in camera review of
the settlement documents in accordance with Huck and its reconsideration of the
respective amounts to be set off against the jury's compensatory damages awards for
Rita's three claims.
VI.    Discovery Sanctions
Finally, Fisher argues the circuit court erred in imposing discovery sanctions
on it because Fisher did not act in bad faith but merely sought to proffer expert
testimony for purposes of appellate review.32 We disagree.
"The entire thrust of the discovery rules involves full and fair disclosure, 'to
prevent a trial from becoming a guessing game or one of surprise for either party.'"
Samples v. Mitchell,

329 S.C. 105

, 113,

495 S.E.2d 213

, 217 (Ct. App. 1997)
(quoting State Highway Dep't v. Booker,

260 S.C. 245

, 252,

195 S.E.2d 615

, 619
(1973)). "Essentially, the rights of discovery provided by the rules give the trial
lawyer the means to prepare for trial, and when these rights are not accorded,
prejudice must be presumed."