Henderson v. Allied Signal, Inc. (2007)

Our plain-English summary of Henderson v. Allied Signal, Inc. (South Carolina Supreme Court, April 30, 2007).

James Henderson, a North Carolina resident, and his wife sued several manufacturers in South Carolina. They claimed he developed mesothelioma from asbestos-containing products he encountered working for many years as a boilermaker, pipefitter and sheet metal worker at industrial sites in South Carolina. Mrs. Henderson claimed loss of consortium. The trial court dismissed many defendants under South Carolina's Door Closing Statute, finding no evidence he was exposed to their asbestos products in South Carolina. The case went to trial against Allied, and the jury found for Allied. Mr. Henderson died after trial, and his wife continued the appeal as personal representative. The Supreme Court of South Carolina affirmed. It held that a nonresident must show the exposure occurred in the state and adopted the "frequency, regularity, and proximity" test for actionable exposure. The Hendersons showed no regular, frequent exposure near his work, and being near static asbestos was not enough. The court also upheld excluding evidence about other asbestos diseases as cumulative.

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: April 30, 2007
• Citation: 644 S.E.2d 724
• Docket: No. 26322
• Stage: Appeal from summary judgment
• State: South Carolina

Outcome. 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.

What the court held. Under the Door Closing Statute, a nonresident plaintiff must show the foreign corporation's asbestos exposure of the victim occurred in South Carolina, and exposure is actionable only if it meets the "frequency, regularity, and proximity" test; mere presence near static asbestos is not exposure.

Issues decided: Causation, Choice of Law, Personal Jurisdiction, Trial Procedure and Discovery, Product Identification.

Why this case is relevant

In this decision the South Carolina Supreme Court adopted the "frequency, regularity, and proximity" test, taken from a federal appeals decision, for deciding whether asbestos exposure is actionable. Under that test, a plaintiff relying on circumstantial evidence must show exposure to a specific product on a regular basis over an extended period, near where the person actually worked. The court also agreed that simply being near static asbestos is not exposure. Applying the state's Door Closing Statute, it required a nonresident to show that the exposure occurred in South Carolina.

Later courts cite the case mainly for that test. In 2024 the South Carolina Supreme Court reaffirmed the state's adherence to the substantial factor causation test it adopted here, and the South Carolina Court of Appeals has quoted the test's wording. Federal courts applying South Carolina law cite it as the governing standard, including the Fourth and Third Circuits and the federal district court in South Carolina. Courts in Kentucky, Hawaii and Delaware have also cited it, sometimes when listing states that use the test.

This section was drafted with the assistance of WARD, our Worldwide Asbestos Reference Desk, from the opinion and the later decisions in our library that cite it. It is not legal advice.

The people and their exposure

• James W. Henderson, Jr.: mesothelioma; died

Who	Work	Where	When	Products
James W. Henderson, Jr.	boilermaker, pipefitter, and sheet metal worker	various industrial sites in South Carolina, South Carolina
James W. Henderson, Jr.	worker with brake products			brakes, clutches and friction materials, Allied brake products

The defendants

• Allied Signal, Inc. (manufacturer)
• Daimler Chrysler (manufacturer)
• Ford Motor Company (manufacturer)
• General Motors Corporation (manufacturer) · its asbestos trust
• North American Refractories Company (manufacturer)
• Uniroyal Holding, Inc. (manufacturer)
• Pneumo Abex (manufacturer)

Decisions this opinion cites

Earlier decisions in our library that the court cited:

• Murphy v. Owens-Corning Fiberglas Corp. (South Carolina Supreme Court, 2003). The South Carolina Supreme Court affirmed the Court of Appeals, which had reversed the circuit court's dismissal under the Door Closing Statute, so the Murphys' suit against DuPont may proceed in South Carolina.
• 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.
• Murphy v. Owens-Corning Fiberglas Corp. (South Carolina Court of Appeals, 2001). The en banc Court of Appeals reversed the trial court's dismissal for lack of subject matter jurisdiction under the Door Closing Statute and remanded, ruling for the Murphys against Rapid American and Du Pont.

Later decisions citing this one

15 later decisions in our library cite this one:

• Edwards v. Scapa Waycross, Inc. (South Carolina Supreme Court, 2024). 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.
• Pace v. Air & Liquid Systems Corporation (U.S. Court of Appeals, Fourth Circuit, 2016). The Fourth Circuit affirmed summary judgment for Crane Co., CBS Corporation (Westinghouse), Goulds Pumps and Air & Liquid Systems (Buffalo) against plaintiff Christine Pace, finding her evidence of exposure insufficient.
• Williams v. Georgia-Pacific (In re Asbestos Products Liability Litigation (NO. VI)) (U.S. Court of Appeals, Third Circuit, 2014). The Third Circuit affirmed summary judgment for Georgia-Pacific, ruling that Baxley had not produced enough evidence that Williams was exposed to an asbestos-containing Georgia-Pacific product.
• Glenn v. 3M Co. (South Carolina Court of Appeals, 2023). The Court of Appeals affirmed the denial of Fisher Controls' JNOV and new trial motions, the jury instruction rulings and the discovery sanctions, in favor of Rita Glenn, but remanded for the trial court to review the settlement documents and reconsider the setoff amounts.
• 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.
• Jolly v. General Elec. Co. (South Carolina Court of Appeals, 2021). The Court of Appeals of South Carolina affirmed the circuit court's denial of Fisher Controls and Crosby Valve's directed verdict, JNOV and motion to quash, its grant of new trial nisi additur to the Jollys, and its partial grant of setoff, so the Jollys kept their verdict.
• Cardinal Industrial Insulation Co., Inc. v. Norris (Kentucky Court of Appeals, 2009). The court reversed the judgment against Cardinal Industrial Insulation and remanded for a directed verdict in its favor, and rejected the Norris estate's cross-appeal claims, including its challenge to the directed verdict for Scientific Design.
• Robertson v. Air & Liquid Systems Corp. (U.S. District Court, District of South Carolina, 2021). The district court granted Eaton Corporation's motion for summary judgment on all claims, ruling that plaintiff Robertson did not show frequent and regular exposure to Eaton's (Cutler-Hammer) motor starters.
• Robertson v. Air & Liquid Systems Corp. (U.S. District Court, District of South Carolina, 2020). The district court granted Covil Corporation's motion for summary judgment against plaintiff Mary Ann Robertson because she did not show actionable exposure to a Covil asbestos product.
• Haskins v. 3M Company (U.S. District Court, District of South Carolina, 2017). The district court granted Air and Liquid Systems' and Crane's motions to exclude Dr. Bedrossian's specific-causation testimony in both cases, and denied the motions as to other experts because plaintiffs conceded they would offer no specific-causation opinion.
• Sparkman v. AW Chesterton Company (U.S. District Court, District of South Carolina, 2014). The district court granted Foster Wheeler's motion for summary judgment and its motion to strike an affidavit, ruling against the plaintiffs, the estate representatives of Elijah Sparkman, Jr., for lack of evidence of exposure to a Foster Wheeler asbestos product.
• Sparkman v. AW Chesterton Company (U.S. District Court, District of South Carolina, 2014). The federal district court denied Research-Cottrell's motion for summary judgment, so the estate's claims against it go forward.
• Sparkman v. AW Chesterton Company (U.S. District Court, District of South Carolina, 2014). The court granted Goulds Pumps' motion for summary judgment against the estate's representatives, holding Goulds could not be liable for asbestos in insulation and gaskets it did not manufacture or supply.
• Cabasug v. Crane Company (U.S. District Court, District of Hawaii, 2013). The court granted Ametek's summary judgment motion, granted Aurora Pump's and Crane's motions in part (as to external insulation and flange gaskets and pads), denied Cleaver Brooks' motion, and denied the Cabasugs' motion on the duty to warn.
• Gibbs v. 84 Lumber Company (Delaware Superior Court, 2020). The court granted Union Carbide Corporation's motion for summary judgment on the Gibbses' design-defect and failure-to-warn 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.

373 S.C. 179 (2007)

644 S.E.2d 724

James W. HENDERSON, Jr., and Betty Lee Henderson, Appellants,

v.

ALLIED SIGNAL, INC. (Successor to The Bendix Corp.), Aqua-Chem, Inc., (d/b/a Cleaver-Brooks

Division), Certain-Teed Corporation, Combustion Engineering, Inc., Daimler Chrysler, Ford Motor

Company, Freightliner, General Motors Corporation, International Truck & Engine Corporation

(formerly Navistar International Transportation), Kenworth (Paccar), Inc., North American

Refractories Company, Peterbilt (Paccar), Inc., Pneumo Abex (Successor to Abex Corp. and

American Brake Shoe Company), Rayloc Company, T & N, Ltd., Uniroyal Holding, Inc. (Successor

to U.S. Rubber Co.), Of whom Allied Signal, Inc., Daimler Chrysler, Ford Motor Company, General

Motors Corporation, North American Refractories Company, Uniroyal Holding, Inc., are,

Respondents.

No. 26322.

Heard March 6, 2007.

Decided April 30, 2007.

Supreme Court of South Carolina.

[*181] Mona Lisa Wallace, of Wallace and Graham, P.A., of Salisbury, NC, for Appellants.

C. Mitchell Brown and W. Thomas Causby, of Nelson, Mullins, Riley, & Scarborough, LLP, of Columbia; James H. Elliott, Jr., of Pritchard & Elliot, LLC, of Charleston; W. David Conner, James B. Pressley, Jr., and Moffatt G. McDonald, all of Haynsworth, Sinkler, Boyd, P.A., of Greenville; Daniel B. White, of Gallivan, White & Boyd, P.A., of Greenville; and G. Mark Phillips, of Nelson Mullins Riley & Scarborough, of Charleston, for Respondents.

Justice BURNETT.

James W. Henderson, Jr., and his wife, Betty Lee, (collectively referred to as Appellants) appeal the order of the trial court granting summary judgment to Allied Signal, Inc., Daimler Chrysler, Ford Motor Company, General Motors Corporation, North American Refractories Company, Pneumo Abex, and Uniroyal Holding, Inc. (Respondents). We affirm. [*182] FACTUAL/PROCEDURAL BACKGROUND

Appellants, North Carolina residents, filed a complaint in 1997 arising out of Mr. Henderson's exposure to asbestos containing products while working as a boilermaker, pipefitter, and sheet metal worker for many years at various industrial sites in South Carolina. Mrs. Henderson's claims arose out of her loss of consortium and enjoyment of life. According to the complaint, Respondents "mined, manufactured, processed, imported, converted, compounded and/or retailed substantial amounts of asbestos and asbestos-related materials" and caused such materials to be placed in the stream of interstate commerce with the result that the materials were sold, distributed and used in South Carolina. Appellants alleged Mr. Henderson "used, worked with, was in the vicinity of, and was exposed to asbestos and asbestos containing products" during the course of his employment and, as a result, contracted mesothelioma and other asbestos-related illnesses. Mr. Henderson was diagnosed in North Carolina.

In a 2001 order, the trial court excluded certain affidavits presented by Appellants for their failure to comply with Rule 33, SCRCP, and dismissed the following defendants from the case pursuant to the Door Closing Statute, S.C.Code Ann. § 15-5-150 (2005), and Rule 12(b)(1), SCRCP: AC & S, Certain-Teed Corporation, Carlisle Corporation, Qualco Products, North American Refractories, Uniroyal, Pnuemo Abex, Kelsey-Hayes, Freightliner, Peterbilt (Paccar), Kenworth (Paccar), International Truck and Engine (formerly Navistar), Daimler Chrysler, General Motors, Ford, Combustion Engineering, Aqua-

Chem, and Bird[1]. The trial court found no evidence to support the allegation that Mr. Henderson was exposed to asbestos containing products in South Carolina.

The trial court granted defendants Rayloc and Covil summary judgment on product identification grounds, finding no evidence their products contained asbestos. The trial court also denied the motions of Allied Signal and McCord Corporation, finding genuine issues of material fact existed as to Mr. [*183] Henderson's exposure to their asbestos containing products in South Carolina. The trial court denied Appellants' motions for reconsideration. The case went to trial against Allied, McCord, and Dana with McCord and Dana settling during trial. The jury found for Allied, and Appellants appealed.[2] We certified this case for review from the Court of Appeals pursuant to Rule 204(b), SCACR. ISSUES

I. Did the trial court err in granting summary judgment based on product exposure?

II. Did the trial court err in limiting the scope of Appellants' evidence solely to mesothelioma?

STANDARD OF REVIEW

When reviewing the grant of a summary judgment motion, the appellate court applies the same standard which governs the trial court under Rule 56(c), SCRCP: summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Osborne v. Adams, 346 S.C. 4, 550 S.E.2d 319 (2001). In determining whether any triable issue of fact exists, the evidence and all inferences which can reasonably be drawn therefrom must be viewed in the light most favorable to the nonmoving party. Summer v. Carpenter, 328 S.C. 36, 492 S.E.2d 55 (1997).

LAW/ANALYSIS

I. Product Exposure

Appellants argue: (1) the trial court erred in granting summary judgment on product exposure to Uniroyal, Ford, General Motors, Chrysler, Abex, and Rayloc; and (2) a jury question exists as to exposure in relation to Kenworth, Freightliner, Paccar, and International Truck. We disagree.

[*184] The Door Closing Statute, S.C.Code Ann. § 15-5-150, provides:

An action against a corporation created by or under the laws of any other state, government or country may be brought in the circuit court:

(1) By any resident of this State for any cause of action; or

(2) By a plaintiff not a resident of this State when the cause of action shall have arisen or the subject of the action shall be situated within this State.

At trial, the Respondents argued Mr. Henderson had no exposure within South Carolina to their asbestos containing products and the trial court lacked subject matter jurisdiction based on the Door Closing Statute and Rule 12(b)(1), SCRCP. Noting Mr. Henderson was admittedly not a resident of South Carolina, the trial court focused on whether the cause of action arose in South Carolina, relying on Murphy v. Owens-Corning Fiberglas Corp., 346 S.C. 37, 550 S.E.2d 589 (Ct.App.2001), overruled on other grounds by Farmer v. Monsanto Corp., 353 S.C. 553, 579 S.E.2d 325 (2003) ("Because § 15-5-150 does not involve subject matter jurisdiction but rather determines the capacity of a party to sue, we overrule these cases to the extent they hold otherwise.").

In Murphy, the Court of Appeals held: "In applying the Door Closing Statute, the manifestation of injury through diagnosis, while relevant, is not dispositive in every case for the purpose of determining whether a cause of action shall have arisen in South Carolina." Murphy, 346 S.C. at 48, 550 S.E.2d at 594-95. Finding the exposure to asbestos originated in South

Carolina, the Court of Appeals held plaintiff's claims arose in this State "even though they did not accrue until the mesothelioma was diagnosed." Id. at 48, 550 S.E.2d at 594. The Court of Appeals, therefore, found the Door Closing Statute did not bar plaintiff's claims because there was a sufficient connection to South Carolina when the acts which gave rise to the cause of action occurred in this State. Id. at 48, 550 S.E.2d at 595. Following the trial court's order in this case, this Court affirmed Murphy and held: "[T]he proper inquiry is whether the foreign corporation's activities that allegedly exposed the victim to the injurious substance, and the exposure itself, occurred within the State. If so, then [*185] the legal wrong was committed here." 356 S.C. 592, 598, 590 S.E.2d 479, 482 (2003).

Appellants failed to meet the Murphy test because they failed to show Respondents' products contained asbestos, and they failed to show any actionable exposure in South Carolina. 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 (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."

We agree with the trial court that "presence in the vicinity of static asbestos is not exposure to asbestos," and find Appellants failed to present evidence of regular and frequent exposure to asbestos containing products in proximity to where Mr. Henderson worked. Due to the lack of evidence Mr. Henderson was exposed to the Respondents' asbestos containing products in South Carolina, we affirm the trial court's holding.

II. Limited Evidence

Appellants argue the trial court unduly limited their evidence to mesothelioma. We disagree.

Appellants' claim against Allied arises out of Mr. Henderson's experience working with brake products manufactured by Allied and his diagnosis of mesothelioma. Appellants argue the trial court erred in excluding certain evidence concerning other asbestos-related diseases and limiting evidence to cases, reports, and studies showing a link between asbestos exposure and mesothelioma.

The trial court correctly excluded evidence concerning other asbestos-related diseases because such evidence was merely cumulative of evidence actually allowed. See, e.g., Commerce Center of Greenville, Inc. v. W. Powers McElveen & Assocs., Inc., 347 S.C. 545, 559, 556 S.E.2d 718, 726 (Ct.App.2001) ("Generally, there is no abuse of discretion where the excluded testimony is merely cumulative of other evidence proffered to the jury.") Appellants were given the opportunity to present [*186] evidence concerning asbestos and Mr. Henderson's asbestos-related illness. Because the factual issues of the case were fully aired, the exclusion of cumulative reports and studies did not prejudice Appellants. Furthermore, such evidence was arguably irrelevant under Rule 403, SCRE. See, e.g., State v. Adams, 354 S.C. 361, 378, 580 S.E.2d 785, 794 (Ct.App.2003) ("A trial judge's decision regarding the comparative probative value and prejudicial effect of evidence should be reversed only in exceptional circumstances. We review a trial court's decision regarding Rule 403 pursuant to the abuse of discretion standard and are obligated to give great deference to the trial court's judgment.") (internal citations omitted). CONCLUSION

Applying both Murphy and Lohrmann, we find Appellants failed to prove actionable exposure to Respondents' asbestoscontaining products. We affirm the decision of the trial court granting summary judgment to Respondents based on the Door Closing statute. We also affirm the decision of the trial court excluding certain affidavits as cumulative. AFFIRMED.

TOAL, C.J., MOORE, and PLEICONES, JJ., and Acting Justice EDWARD B. COTTINGHAM, concur.

[1] During the course of litigation, numerous defendants filed for bankruptcy and, therefore, are not parties to this action. Also, Pnuemo-Abex reached a settlement agreement with Appellants prior to oral arguments before this Court.

[2] Mr. Henderson died shortly after trial, and Ms. Henderson, as personal representative of his estate, proceeded with this appeal.

Sources

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