827 S.E.2d 183
S.C. Ct. App.2019Background
- From 1971–1980 Dennis Seay (employed by Daniel Construction) performed maintenance and repair work at Celanese’s polyester plant, exposing him to asbestos; he was later diagnosed with and died from mesothelioma.
- Seay’s estate sued Celanese (through successor CNA) alleging failure to warn/provide protection; jury awarded survival damages ($2M), wrongful-death ($5M), loss of consortium ($5M), and punitive damages ($2M).
- CNA moved for JNOV/summary judgment arguing Seay was a statutory employee of Celanese under S.C. Code § 42-1-400, making workers’ compensation the exclusive remedy; trial and post-trial motions were denied.
- During trial a juror disclosed he worked at the same plant and did similar work and was later excused; CNA moved for a mistrial alleging premature deliberations and outside influence but the court denied relief.
- A brief hospice video of Seay crying was played without a contemporaneous objection; CNA later moved for mistrial and new trial; the court found no prejudicial error and that objection was waived.
Issues
| Issue | Plaintiff's Argument (Keene/estate) | Defendant's Argument (CNA) | Held |
|---|---|---|---|
| 1. Statutory-employee under §42-1-400 | Seay was not Celanese’s employee; maintenance workers were independent contractors, so tort claims allowed | Seay’s maintenance work was essential to Celanese’s polyester manufacturing and thus part of Celanese’s business, making him a statutory employee and limiting remedy to workers’ compensation | Court: Not a statutory employee; maintenance, though important, was not "part or process" of Celanese’s manufacturing (affirmed trial court) |
| 2. Mistrial for juror misconduct | Juror #16’s disclosures and conduct (same plant/job) prejudiced fairness; premature deliberations and outside influence occurred | Any comments were not shown to have affected impartiality; court excused juror and no voir dire of other jurors was requested | Court: No abuse of discretion; no evidence of premature deliberations or prejudicial outside influence; mistrial denied |
| 3. Admission of hospice video; mistrial | Video of Seay crying was inflammatory, played without contemporaneous objection, and prejudiced jury | Video was probative of pain and suffering; objection waived by late challenge; not unduly prejudicial given medical evidence | Court: Objection waived; even on merits video was admissible and not unfairly prejudicial; mistrial/new trial denied |
| 4. Excessive damages/new trial | Verdict was grossly excessive, influenced by passion from juror issue and video | Awards are supported by evidence of severe suffering, medical procedures, familial loss, and Celanese’s culpability; punitive damages supported by record | Court: Awards not excessive; trial court properly denied new trial/remittitur; affirming verdict |
Key Cases Cited
- Abbott v. The Ltd., Inc., 338 S.C. 161 (2000) (holds that importance of an activity to the employer’s operation does not automatically make it part of the employer’s trade or business for statutory-employee purposes)
- Olmstead v. Shakespeare, 354 S.C. 421 (2003) (applies Abbott; delivery by common carrier was important but not part of manufacturer’s business)
- Ost v. Integrated Prods., Inc., 296 S.C. 241 (1988) (articulates three tests for whether subcontracted work is part of owner’s trade, business, or occupation)
- Poch v. Bayshore Concrete Prods./S.C., Inc., 405 S.C. 359 (2013) (jurisdictional nature of employer-employee determination for workers’ compensation; appellate review of facts by preponderance)
- Mishoe v. QHG of Lake City, Inc., 366 S.C. 195 (Ct. App. 2005) (standard: mistrial is extreme remedy; denial reviewed for abuse of discretion)
- Burke v. Republic Parking Sys., Inc., 421 S.C. 553 (2017) (admission of evidence reviewed for manifest abuse of discretion with probable prejudice)