869 S.E.2d 819
S.C. Ct. App.2021Background
- Dale Jolly worked as a mechanical inspector at Duke Power (Oconee, McGuire, Catawba) from 1980–1984 and frequently was in close proximity to coworkers removing asbestos-containing gaskets from valves during multi-week plant outages.
- Appellants Fisher Controls and Crosby Valve supplied the valves (and sold replacement gaskets to Duke) but did not manufacture the asbestos gaskets; Dale testified he saw and breathed visible dust when gaskets were brushed/grinded.
- Dale was diagnosed with malignant pleural mesothelioma in December 2015; he and his wife sued multiple defendants in 2016; co-defendants settled pretrial for $2,270,000 and were released.
- At trial (July 2017) the jury awarded $200,000 to Dale and $100,000 to Brenda; the court granted a new-trial nisi additur and increased awards to $1,580,000 and $290,000 respectively.
- Appellants moved for directed verdict/JNOV (arguing insufficient causation and other defects), sought setoff for prior settlements, and moved to quash subpoenas to corporate representatives; the trial court denied JNOV, granted partial setoff, denied quash motions, and granted additur; this appeal followed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Causation (specific/proximate) | Dale's testimony + experts (Drs. Frank, Maddox, Brody) established general and specific causation, cumulative-dose contribution, and frequent/regular/proximate exposure to Fisher/Crosby valves satisfying the substantial-factor test | Appellants: experts relied on an unreliable "each and every exposure" theory and failed to quantify fibers or show a threshold exposure from Fisher/Crosby products | Court: Evidence was sufficient; experts used cumulative-dose methodology tied to case facts; jury question on proximate cause preserved under Henderson/Lohrmann substantial-factor test; JNOV denied |
| Failure to warn — Sophisticated intermediary | Duke was not actually aware gaskets liberated hazardous fibers during Dale's tenure; Appellants did not prove reasonable actual reliance on Duke to warn | Appellants: Duke was a sophisticated intermediary and compliance with OSHA made direct warnings unnecessary | Court: Appellants bore burden to prove the defense; record showed Appellants did not warn and did not reasonably rely on Duke; instruction and verdict upheld |
| Failure to warn — Open and obvious danger | Plaintiffs: Duke did not warn re: gaskets; danger not obviously known to employees in 1980–84 | Appellants: danger was open/obvious and Dale knew asbestos was hazardous | Court: Reasonable minds could differ; jury could find danger not generally known to Duke employees at the time; verdict upheld |
| Design defect / reasonable alternative | Plaintiffs: metal or non-asbestos gaskets were feasible alternatives and Appellants knew risks and failed to adopt alternatives | Appellants: asbestos gaskets were necessary for high-temperature/high-pressure service; no reasonable alternative shown | Court: Evidence (including admissions that non-asbestos/metal gaskets existed) created fact issue on reasonable alternative; JNOV denied |
| Deviation from standard of care | Plaintiffs: industry standards/OSHA and expert testimony showed Appellants failed to test or warn and thus breached duty | Appellants: regulations insufficient to establish standard; no proof of deviation | Court: Industry standards and expert testimony were probative; evidence supported deviation; negligence claim allowed to stand |
| New-trial nisi additur (damages) | Plaintiffs: jury award inadequate given medical bills, prognosis, pain/suffering, and comparable mesothelioma awards | Appellants: trial court speculated about allocation of the general verdict and lacked compelling reasons to increase | Held: Trial court acted within discretion; relied on expert testimony about past/future medical costs and comprehensive factual recitation; additur affirmed |
| Setoff of prior settlements | Plaintiffs allocated one-third of settlement to future wrongful-death claims; court denied setoff for that portion | Appellants: allocation to future wrongful death should have reduced their liability (double recovery) | Court: Settling parties may allocate proceeds; setoff applies only to same injury tried; allocation accepted and partial setoff affirmed; no double recovery |
| Subpoenas / motion to quash | Plaintiffs served subpoenas on defendants' counsel; argued valid service and trial subpoena power over parties | Appellants: court lacked power to subpoena out-of-state parties and service on counsel was ineffective | Court: Rule 45 and Rule 4 permit trial subpoenas to parties and service via counsel/ commercial delivery; defendants had submitted to jurisdiction; quash denied |
Key Cases Cited
- Henderson v. Allied Signal, Inc., 373 S.C. 179 (S.C. 2007) (adopts Lohrmann frequency/regularity/proximity substantial-factor test for asbestos causation)
- Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986) (formulates frequency/regularity/proximity test for substantial causation)
- Rost v. Ford Motor Co., 151 A.3d 1032 (Pa. 2016) (distinguishes cumulative-dose testimony from unreliable "every exposure" causation theory)
- Branham v. Ford Motor Co., 390 S.C. 203 (S.C. 2010) (adopts Restatement (Third) approach requiring proof of a reasonable alternative design)
- Curcio v. Caterpillar, Inc., 355 S.C. 316 (S.C. 2003) (standard for reviewing JNOV — evidence existence not weight; jury verdict upheld unless no evidence reasonably supports it)
- Riley v. Ford Motor Co., 414 S.C. 185 (S.C. 2015) (standard/deference for trial court granting new-trial nisi additur)
- State v. Council, 335 S.C. 1 (S.C. 1999) (admissibility of scientific expert evidence under Rule 702/SCRE)
- Merrell Dow Pharms. v. Havner, 953 S.W.2d 706 (Tex. 1997) (framework for specific causation requirements in toxic-tort litigation)