Products Liability Law Daily Wrap Up, CAUSATION—ASBESTOS—S.C. Sup. Ct.: South Carolina high court affirms asbestos jury verdict, (Mar 1, 2024)

By Wendy Biddle, J.D.

The court affirmed the court of appeals’ use of the substantial factor causation test.

After an employee who worked closely with dryer felt manufactured by Scapa Waycross that contained asbestos developed mesothelioma and died, a jury awarded the decedent’s estate a verdict for negligence and wrongful death. The court of appeals affirmed the trial court’s denial of a motion for judgment notwithstanding the verdict, finding that the decedent did show that he was exposed to asbestos-containing dryer felts on a regular basis over an extended period of time where he worked. The South Carolina Supreme Court affirmed, holding that the court of appeals applied the appropriate causation test and the evidence was sufficient for a jury to find that Scapa Waycross’ asbestos-containing dryer felts were a substantial factor in the decedent developing and dying from mesothelioma (Edwards v. Scapa Waycross, Inc., February 28, 2024, James, G.).

Background. The decedent was employed at a manufacturing plant that transformed wood pulp into paper. He worked on a paper machine that was composed of large dryer sections, and each section had a top and bottom dryer felt. The decedent’s responsibilities routinely involved installing, cleaning, removing, and disposing of dryer felts, and cleaning the entire machine. Scapa Waycross supplied the dryer felts that the decedent used on his paper machine. Approximately one quarter of the felts contained asbestos.

Ten years after he retired, the decedent was diagnosed with malignant pleural mesothelioma, an aggressive form of lung cancer caused by asbestos exposure and inhalation. He filed suit against several entities, asserting claims for strict liability, negligence, and breach of the implied warranty of merchantability. After his death from mesothelioma, the decedent’s estate added claims for wrongful death and survival. Prior to trial, the estate settled with all defendants except for Scapa Waycross.

Trial court’s verdict and order. The jury returned a verdict for the decedent on the negligence claim and awarded $600,000 in damages for the survival action and $100,000 in damages for the wrongful death action. Scapa Waycross then filed motions for setoff, for production of the decedent’s settlements and payments with all third-party tortfeasors, and for judgment notwithstanding the verdict.

The trial court granted the decedent’s motion for a new trial nisi additur and increased the survival damages award from $600,000 to $1 million but did not adjust the wrongful death award. The court denied Scapa Waycross’ motion for JNOV and its motion for production of settlements and payments with all third-party tortfeasors. However, the court granted Scapa Waycross’ motion for setoff and reduced the $1 million survival damages by 20 percent of the decedent’s prior settlement allocation and the wrongful death award by 80 percent of the settlement allocation.

Court of appeals. The South Carolina Court of Appeals affirmed the trial court’s ruling that a decedent’s estate provided legally sufficient evidence to prove that the decedent’s workplace exposure to asbestos-containing dryer felts supplied by Scapa Waycross was a substantial factor that caused his mesothelioma and death [see Products Liability Law Daily’s August 5, 2022 analysis]. Based on the testimony of three experts, the appeals court found that the decedent presented sufficient evidence to prove general causation. An expert pathologist explained that chrysotile asbestos fibers, which Scapa Waycross used to manufacture dryer felts, are capable of reaching a human’s lungs. The decedent’s cardiothoracic surgeon testified that asbestos exposure, over time, has been the number one cause of mesothelioma. In addition, a physician specializing in occupational medicine testified that all types of asbestos are toxic and that there is no known safe level of asbestos exposure. He explained that mesothelioma is caused by an individual’s cumulative exposure to all types of asbestos-containing products. Scapa Waycross appealed the decision.

South Carolina Supreme Court. The South Carolina high court granted certiorari to review the appeals court decision (1) affirming the trial court’s denial of Scapa Waycross’ motion for judgment notwithstanding the verdict; (2) affirming the trial court’s order granting the decedent’s motion for a new trial nisi additur; and (3) affirming the trial court’s denial of Scapa Waycross’ motion for reallocation of pretrial settlement proceeds.

The court of last resort dismissed the writ of certiorari on the issues for additur and the reallocation of settlement proceeds because Scapa Waycross failed to bring up those arguments to the court of appeals and therefore waived its right to appeal those issues.

As to the appeal of the denial of the JNOV, the supreme court affirmed the court of appeals’ use of the substantial factor causation test, which states that 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.”

The court pointed out that Scapa Waycross was incorrect in claiming that the court of appeals used the cumulative dose theory and not substantial factor causation test. The expert explained to the jury that as the amount of asbestos accumulates in the body, the likelihood that a person will develop mesothelioma increases. The court concluded that the testimony satisfied the causation test set forth in Henderson v. Allied Signal, Inc., 644 S.E. 2d 724 (S.C. 2007) and in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986). The doctor’s ultimate opinion was that the decedent’s exposure to Scapa Waycross’ asbestos-containing dryer felts during his employment was a substantial factor in causing the mesothelioma. The court stated that the evidence presented as a whole created a jury issue on the issue of Scapa Waycross’ liability. The court affirmed the court of appeals ruling.

The case is No. 28193.

Attorneys: Mona Lisa Wallace (Wallace & Graham, PA) for Stephen R. Edwards. C. Mitchell Brown (Nelson Mullins Riley & Scarborough LLP) for Scapa Waycross, Inc.

Companies: Scapa Waycross, Inc.

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