Larry Southern v. Richard H. Bishoff, PC
675 F. App'x 239
4th Cir.2017Background
- Four South Carolina employees (the "Employees") who worked at Springs Mills were diagnosed with asbestosis and retained various out-of-state attorneys to prosecute asbestos personal-injury claims; representation contracts disclaimed workers’ compensation advice.
- Attorneys pursued recoveries from bankruptcy-created asbestos trusts; Employees later sued their attorneys for malpractice, breach of contract, and breach of fiduciary duty for failing to advise or protect their potential South Carolina workers’ compensation claims (including notice requirements under S.C. Code § 42-1-560).
- Limited discovery focused on whether Employees had viable workers’ compensation claims when attorneys were retained; key issues were (a) whether asbestosis caused disability/lost wages and (b) whether disablement occurred within statutory timing rules.
- Employees’ medical expert (Dr. Alleyne) opined generally that they had asbestosis and were disabled when examined but did not initially opine when disablement began; after the discovery deadline he furnished supplemental affidavits stating the Employees were disabled when they left Springs Mills.
- The district court excluded the late expert opinions for purposes of summary judgment, concluded Employees failed to forecast admissible evidence of lost wages or a compensable workers’ compensation claim under South Carolina law, and granted summary judgment to defendants on all claims.
- The Fourth Circuit affirmed, holding Employees could not show damages/proximate causation required for malpractice or meet the high showing needed for fee disgorgement on the fiduciary-duty claim.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Employees had viable SC workers’ compensation claims when attorneys were retained | Employees argued their asbestosis claims could have been pursued (including under § 42-9-30 pre-Skinner) and attorneys should have preserved/worked both tracks | Attorneys argued Employees could not show compensable disablement or lost wages from asbestosis when representation began, so no viable claim existed | Held: No viable WC claim shown — Employees failed to forecast evidence of lost wages due to asbestosis, and § 42-11-60 required wage-loss proof |
| Whether Employees established malpractice damages/proximate causation | Employees claimed lost probability of success/settlement value of preserved WC claims (including testimony from a former commissioner) | Attorneys said no admissible evidence that Employees would have recovered or settled absent malpractice; late expert affidavits were untimely and properly ignored | Held: Plaintiffs failed to show non-speculative damages — no evidence WC claims would have produced recoverable or settleable value |
| Admissibility of experts’ supplemental affidavits (timing) | Employees contended Rule 26(e) permitted supplementation after deposition and that affidavits responded to deposition questions | Attorneys argued the affidavits were untimely, constituted new opinions, and violated scheduling order and Rule 16(b) | Held: Supplemental affidavits were untimely and properly disregarded for summary judgment; they were not true Rule 26(e) supplements |
| Whether fiduciary-duty claim could survive for fee disgorgement without proof of damages | Employees argued disgorgement is available without showing compensable damages | Attorneys argued disgorgement requires a high showing (clear and serious violation) and record lacks such misconduct | Held: No basis for disgorgement — Employees could not show a clear and serious violation or underlying viable claim, so fiduciary claim fails |
Key Cases Cited
- Barraford v. T & N Ltd., 778 F.3d 258 (1st Cir. 2015) (discussing bankruptcy-created asbestos trusts under 11 U.S.C. § 524(g))
- T–Mobile Ne., LLC v. City Council of Newport News, 674 F.3d 380 (4th Cir. 2012) (standard of review for summary judgment)
- RFT Mgmt. Co. v. Tinsley & Adams L.L.P., 732 S.E.2d 166 (S.C. 2012) (elements of legal malpractice under South Carolina law)
- Skinner v. Westinghouse Elec. Corp., 716 S.E.2d 443 (S.C. 2011) (asbestosis is pulmonary disease and compensation requires lost wages under general-disability statutes)
- Hutson v. S.C. State Ports Auth., 732 S.E.2d 500 (S.C. 2012) (distinguishing general-disability and scheduled-loss statutes)
- Hall v. Fedor, 561 S.E.2d 654 (S.C. Ct. App. 2002) (plaintiff must show they "most probably" would have prevailed or received greater settlement to prove malpractice damages)
- Doe v. Howe, 626 S.E.2d 25 (S.C. Ct. App. 2005) (plaintiff must show loss of probability of success for malpractice damages)
- Drake v. Raybestos-Manhattan, Inc., 127 S.E.2d 288 (S.C. 1962) (predecessor to § 42-11-60 on pulmonary disease compensability)
- Sellers v. Daniel Constr. Co., 330 S.E.2d 305 (S.C. 1985) (governing law is the law in effect at time of injury)