Edwards v. Scapa Waycross, Inc. (2024)

Our plain-English summary of Edwards v. Scapa Waycross, Inc. (South Carolina Supreme Court, February 28, 2024).

Stephen Edwards, personal representative of the estate of Steven Stewart, sued Scapa Waycross, Inc. after Stewart developed mesothelioma. The case concerned Stewart's exposure to Scapa's asbestos-containing dryer felts while he worked at Bowater. A jury found for the estate. Scapa asked for judgment notwithstanding the verdict, arguing the evidence of causation was legally insufficient. It also challenged an increase in the damages award (additur) and the allocation of pretrial settlement money. The court of appeals affirmed. The South Carolina Supreme Court dismissed review of the additur and settlement-allocation questions as improvidently granted. On causation, it affirmed. It reaffirmed the Henderson and Lohrmann test, which requires proof of exposure to a specific product regularly, over an extended period, near where the plaintiff worked. It rejected Scapa's claim that the court of appeals had approved a cumulative dose theory. The court said the expert, Dr. Frank, did not rely on that theory, and that the evidence as a whole created a jury question on Scapa's liability.

We wrote this summary from the court's opinion with the help of AI. It is not the court's wording, and it is not legal advice. The full opinion is below.

The decision

• Court: South Carolina Supreme Court
• Decided: February 28, 2024
• Citation: 899 S.E.2d 597
• Stage: Appeal from post-trial motions
• State: South Carolina

Outcome. The South Carolina Supreme Court affirmed the court of appeals' ruling for Edwards (the estate of Stewart) against Scapa Waycross on causation, and dismissed the writ as improvidently granted on additur and reallocation of settlement proceeds.

What the court held. South Carolina continues to apply the Lohrmann 'frequency, regularity, and proximity' substantial factor test for asbestos causation. A plaintiff must show exposure to the defendant's specific product on a regular basis over an extended period, in proximity to where the plaintiff worked.

Issues decided: Causation, Expert Testimony.

The people and their exposure

• Steven Redfearn Stewart: mesothelioma; died

Who	Work	Where	When	Products
Steven Redfearn Stewart	employee at Bowater	Bowater		asbestos paper, felt and millboard, Scapa asbestos-containing dryer felts

The defendants

• Scapa Waycross, Inc. (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Rost v. Ford Motor Co. (Pennsylvania Supreme Court, 2016). The Pennsylvania Supreme Court affirmed the judgment for the Rost estates against Ford Motor Company, holding that the causation testimony was proper and that, although consolidation with two other cases was error, Ford showed no prejudice.
• Henderson v. Allied Signal, Inc. (South Carolina Supreme Court, 2007). The South Carolina Supreme Court affirmed summary judgment for the respondent manufacturers, finding the Hendersons failed to prove actionable asbestos exposure in South Carolina, and affirmed the exclusion of cumulative evidence on other asbestos diseases.
• Lohrmann v. Pittsburgh Corning Corp. (U.S. Court of Appeals, Fourth Circuit, 1986). The Fourth Circuit affirmed the judgment for the defendants: directed verdicts for Raymark, Celotex and Pittsburgh Corning, a jury verdict for the other four defendants, and the challenged evidentiary rulings and jury instructions, against plaintiff Lohrmann.
• Edwards v. Scapa Waycross, Inc. (South Carolina Court of Appeals, 2022). The Court of Appeals of South Carolina affirmed the judgment for Stewart's estate against Scapa, upholding the denial of JNOV, the additur increasing survival damages to $1 million, the refusal to reallocate settlement proceeds, and the exclusion of Stewart's bankruptcy trust claims.

On our site

• South Carolina Mesothelioma Lawyer: Asbestos Claims, Deadlines & Compensation

The court's opinion

The text below is Google Scholar's copy of the court's opinion, a public record. Numbers in brackets, such as [*921], mark where each page of the printed reporter begins.

442 S.C. 387 (2024)

899 S.E.2d 597

Stephen R. EDWARDS, Individually and as Personal Representative of the Estate of Steven

Redfearn Stewart, Respondent,

v.

SCAPA WAYCROSS, INC., Petitioner.

Appellate Case No. 2022-001574 Opinion No. 28193.

Heard February 6, 2024.

Filed February 28, 2024.

Supreme Court of South Carolina.

[*389] Appeal from York County, Appellate Case No. 2022-001574, Jean H. Toal, Acting Circuit Court Judge.

ON WRIT OF CERTIORARI TO THE COURT OF APPEALS.

AFFIRMED.

C. Mitchell Brown, of Nelson Mullins Riley & Scarborough LLP, of Columbia; William Peele Early, of Pierce, Sloan, Wilson, Kennedy & Early, LLC, of Charleston; and S. Christopher Collier, admitted pro hac vice, of Lewis Brisbois Bisgaard & Smith LLP, of Atlanta, GA, all for Petitioner.

Mona Lisa Wallace and William M. Graham, both of Wallace & Graham, PA, of Salisbury, NC; Kathleen Chewning Barnes, of Barnes Law Firm, LLC, of Hampton; Thomas H. Hart, III and Gregory Lynn Hyland, both of Hart, Hyland Shepherd, LLC, of Summerville; and Frederick John Jekel, of Leventis & Ransom, of Columbia, all for Respondent.

[*390] Caroline Marie Gieser, of Shook, Hardy & Bacon L.L.P., of Atlanta, GA, for Amici Curiae American Tort Reform Association, National Association of Manufacturers, National Federation of Independent Business Small Business Legal Center, Inc., National Association of Mutual Insurance Companies, American Property Casualty Insurance Association, and American Coatings Association.

Erik. R. Zimmerman, admitted pro hac vice, and Stephen M. Cox, both of Robinson, Bradshaw & Hinson, P.A., of Chapel Hill, NC, for Amici Curiae The Chamber of Commerce of the United States of America, and The South Carolina Chamber of Commerce.

JUSTICE JAMES:

In this asbestos/mesothelioma case, we granted a writ of certiorari to review the court of appeals' decision (1) affirming the trial court's denial of Petitioner Scapa Waycross, Inc.'s (Scapa) motion for judgment notwithstanding the verdict, which was based on the ground Respondent failed to introduce legally sufficient evidence of causation; (2) affirming the trial court's order granting Respondent's motion for a new trial nisi additur; and (3) affirming the trial court's denial of Scapa's motion for reallocation of pretrial settlement proceeds. Edwards v. Scapa Waycross, Inc., 437 S.C. 396, 878 S.E.2d 696 (Ct. App. 2022).

We dismiss the writ of certiorari as improvidently granted with respect to the issues of additur and the reallocation of settlement proceeds.[1] We affirm the court of appeals' reasoning on the causation issue, but we address the issue to reaffirm South Carolina's adherence to the substantial factor [*391] causation test we adopted in Henderson v. Allied Signal, Inc., 373 S.C. 179, 644 S.E.2d 724 (2007).

In Henderson, we pronounced:

In determining whether exposure is actionable, we adopt the "frequency, regularity, and proximity test" set forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1162[-63] (4th Cir. 1986): "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."

373 S.C. at 185, 644 S.E.2d at 727 (emphases added); see also Lohrmann, 782 F.2d at 1162 (applying Maryland law to a pipefitter's products liability claims and restating the substantial factor test employed in Maryland products liability cases: "To establish proximate causation in Maryland, 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)). While the Lohrmann substantial factor test relaxes the "but-for" requirement that applies in traditional tort cases, the test still requires the plaintiff to show "more than a casual or minimum contact with the product." Lohrmann, 782 F.2d at 1162.

In a products liability case, whether the plaintiff's theory is strict liability, negligence, or breach of warranty, the plaintiff must prove the defendant's defective product was a proximate cause of the plaintiff's injury. See Bray v. Marathon Corp., 356 S.C. 111, 116, 588 S.E.2d 93, 95 (2003). To prove proximate cause, a plaintiff must establish both causation in fact and legal cause. Small v. Pioneer Mach., Inc., 329 S.C. 448, 463, 494 S.E.2d 835, 842 (Ct. App. 1997). To establish causation in fact, the plaintiff must show the injury complained of would not have occurred "but for" the defendant's conduct, and to establish legal cause, the plaintiff must establish the plaintiff's injury was a foreseeable consequence of the defendant's conduct. See id.

A defendant "cannot be charged with that which is unpredictable or could not be expected to happen. A plaintiff therefore proves legal cause by establishing the injury in [*392] question occurred as a natural and probable consequence of the defendant's act." Id. at 463, 494 S.E.2d at 843 (citation omitted) (first citing Bramlette v. Charter-Medical-Columbia, 302 S.C. 68, 393 S.E.2d 914 (1990); and then citing Greenville Mem'l Auditorium v. Martin, 301 S.C. 242, 391 S.E.2d 546 (1990)). The plaintiff may prove proximate cause by direct or circumstantial evidence, or some combination of the two. Small, 329 S.C. at 464, 494 S.E.2d at 843.

The Lohrmann causation test takes into the account the reality that "most plaintiffs sue every known manufacturer of asbestos products." 782 F.2d at 1162. Some defendants are dismissed pretrial or at the directed verdict stage for lack of evidence, some defendants settle, and some defendants go to trial. Id. Applying the test to Scapa's liability, it was incumbent upon Stewart to prove he was exposed to Scapa asbestos-containing dryer felts on a regular basis over an extended time in proximity to where he worked.

Scapa argues it was entitled to judgment notwithstanding the verdict because the evidence presented by Stewart fell short of the Lohrmann causation standard. Scapa points to the court of appeals' citation of the Supreme Court of Pennsylvania's opinion in Rost v. Ford Motor Company[2] and claims the court of appeals improperly approved the use of the cumulative dose theory rejected in Henderson and Lohrmann. We disagree. The court of appeals did not adopt a new causation test. Moreover, the court correctly noted Dr. Frank did not rely on the cumulative dose theory as a basis for his opinion that Scapa asbestos-containing dryer felts were a substantial factor in causing Stewart's mesothelioma. The trial court properly allowed Dr. Frank to explain to the jury that as the amount of asbestos accumulates in the body, the likelihood of developing mesothelioma increases. Dr. Frank's ultimate opinion was that Stewart's exposure to Scapa asbestos-containing dryer felts during his employment at Bowater was a substantial factor in causing his mesothelioma. Dr. Frank's testimony satisfied the requirements of Henderson and [*393] Lohrmann, and, as a whole, the evidence in the record created a jury issue on the issue of Scapa's liability.

For the foregoing reasons, we affirm the court of appeals. AFFIRMED.

BEATTY, C.J., KITTREDGE, FEW, and HILL, JJ., concur.

[1] In its brief to this Court, Scapa argues for the first time that S.C. Code Ann. § 15-38-50 (2005) imposes a restriction on a plaintiff's ability to allocate settlement proceeds in a manner most advantageous to the plaintiff. The court of appeals mentioned section 15-38-50 in its opinion, but not in the context now argued by Scapa. 437 S.C. at 422-23, 422 n.3, 878 S.E.2d at 710 & n.3. Scapa's argument is not preserved, so we do not address it. See I'On, L.L.C. v. Town of Mt. Pleasant, 338 S.C. 406, 422, 526 S.E.2d 716, 724 (2000), for "the long-established preservation requirement that the losing party generally must both present his issues and arguments to the lower court and obtain a ruling before an appellate court will review those issues and arguments."

[2] 637 Pa. 625, 151 A.3d 1032 (2016). Because we hold the court of appeals did not deviate from the Lohrmann test in this case, we need not decide whether the Supreme Court of Pennsylvania did or did not base its decision in Rost on the substantial factor test.

Sources

• The opinion on Google Scholar
• South Carolina asbestos laws
• South Carolina asbestos exposure sites