Last week, the South Carolina Supreme Court established a Civil Motions Pilot Program to begin next month governing motion practice in the Third and Fifteen Circuits. Basically, the order follows the form of the federal rules. The pilot program will require contemporaneous memoranda in support of motions, and opposition papers to be filed within 30 days. It also features a number of new formal requirements. If you practice in those circuits, you’ll need to follow the new rules. Even if you practice elsewhere, you may wish to consider the new rules as some evidence of what the South Carolina Supreme Court believes to be best practices. You can read the court’s order here.
Heads up, South Carolina lawyers! In case you haven’t heard, the South Carolina Supreme Court recently revised its rule on the issuance of subpoenas to provide that the required witness fee and mileage reimbursement need not be tendered until the witness actually appears for the deposition or trial. The court has also approved revised subpoena forms which are listed on its website.
Plaintiffs often send notice of claim and pre-suit demands. Occasionally, it is a good idea to resolve a claim before filing suit, but more often than not, pre-suit resolution is not possible, and everyone knows that a lawsuit will eventually be filed. Typically, there will be an extended silence following the breakdown of pre-suit negotiations, and nothing else happens until the plaintiff files the lawsuit, which often happens the day before the statute of limitations runs. Meanwhile, the Plaintiff is free to collect evidence and otherwise build his or her case, choose the best venue for the case, and examine other relevant issues. All the while, the defendant waits in the dark, at least procedurally. But what if a potential defendant could decide when and where the dispute is taken to court? What if the defendant could begin discovery while recollections and evidence remain fresh? Perhaps the South Carolina Uniform Declaratory Judgment Act (SCUDJA) provides the opportunity to do so.
Accordingly, we’ve been doing some brainstorming on this topic.
Declaratory judgments are typically filed to settle insurance coverage disputes, constitutional issues, and other nontraditional legal disputes. However, the SCUDJA bestows upon courts the power to declare “rights, status, and other legal relationships whether or not further relief is or could be claimed.” SC Code Ann § 15-53-20. A DJ can be used to ask the court to construe a contract “before or after there has been a breach thereof.” SC Code Ann § 15-53-40. A DJ can be used to try and determine an issue of fact “in the same manner that issues of fact are determined in other civil actions” and parties to a DJ have a right to a jury trial. SC Code Ann § 15-53-90. The purpose of the SCUDJA is to provide “relief from uncertainty,” and the statute is to be “liberally construed.” SC Code Ann § 15-53-130; Harrington v. Blackston, 311 S.C. 459, 463, 429 S.E.2d 826, 829 (Ct. App. 1993) (“Moreover, our Supreme Court has held that declaratory judgment actions must be liberally construed to settle legal rights and remove insecurity from legal relationships without awaiting a violation of the relationships.”).
Obviously, the DJ plaintiff would need to determine whether a DJ makes sense from a strategic standpoint. Considerations would include: the amount in controversy, the likelihood that the claimant will actually file suit; the strength of the potential defense to the claim; whether there is an advantage to beginning discovery now instead of waiting for the claimant to file suit; and of course venue considerations. This is a novel approach, to be certain, and it woudn’t be appropriate in most cases. But there might be that one case – that unusual set of facts and legal issues – that prompts consideration of this approach.
As you may know, sometimes we here at Abnormal Use contribute content to other online ventures. Last week, our own Kyle White saw the publication on an article he wrote in DRI’s Strictly Speaking newsletter (the official publication of DRI’s Product Liability Committee). The subject is one he knows well: asbestos jurisprudence in South Carolina.
A South Carolina federal trial court recently granted summary judgment in a mesothelioma case, after applying the Lohrmann standard, in spite of the Plaintiff’s argument that a lower standard of proof should apply in mesothelioma cases. See Sparkman v. A.W. Chesterton Co., No. 2:12-CV-02957-DCN, 2014 WL 7369489, at *1 (D.S.C. Dec. 29, 2014). In Sparkman, the decedent’s personal representative alleged that exposure to asbestos from a Foster Wheeler boiler caused the decedent’s mesothelioma. In viewing the evidence in the light most favorable to the Plaintiff, the Court determined that co-worker testimony established that a Foster Wheeler boiler may have been present in the decedent’s vicinity during his employment at Westvaco Pulp and Paper Mill in North Charleston, South Carolina. Additionally, the evidence showed that some of the boilers at the plant may have been insulated with asbestos and that asbestos may have been airborne in the plant due to work on equipment at the plant. However, there was no direct evidence that the possible Foster Wheeler boiler was insulated with asbestos, or, in turn, that asbestos insulation on a Foster Wheeler boiler was manipulated such that it was breathed by the decedent.
A sub-issue in the case involved an affidavit submitted by the Plaintiff in opposition to the motion for summary judgment. Apparently, the affidavit was executed by the affiant in another, unrelated case. The affiant stated that Foster Wheeler specified asbestos insulation for its boilers during the relevant time frame. Foster Wheeler argued that the Court should strike the affidavit as irrelevant, pointing to deposition testimony that showed that the insulation specifications for Foster Wheeler’s boilers depended on the terms of the contract with a particular customer and the fact that asbestos insulation happened to be specified in one contract does not mean that asbestos insulation was specified in the contract with Westvaco. The Court agreed, granting the motion to strike.
You can read the rest of the article here.
We encourage you to give it a read.
As we recently noted, GWB now has an office in Charleston, South Carolina. With our growth over the last five years, we thought our readers might enjoy a bit of the firm’s history. Gallivan, White, & Boyd, P.A. was founded in Greenville, South Carolina in 1948. The firm practiced general law during this time period and served as the statewide division counsel for Southern Railway Company and general counsel for Woodside Bank. The firm continued as general counsel when a merger created the state’s largest bank known as South Carolina National Bank. Southern Railway Company changed its name to Norfolk Southern Corporation in 1982 and remains a client of the firm today.
In the 1950’s, the small law firm began to grow in number and reputation. The firm expanded to four attorneys and relocated to 128 Boadus Avenue in Greenville in 1958. Greenville mirrored the firm in its growth, becoming known as the textile capital of the world in the 1950’s and 1960’s.
During the 1970’s, the firm continued its steady expansion with the addition of H. Mills Gallivan and Daniel B. White in 1976 and W. Howard Boyd, Jr. in 1977. Mills, Danny, and Howard were the firm’s 7th, 8th, and 9th attorneys. With their arrival, the firm began focusing its practice on business and corporate litigation, trial work, and mass tort litigation, including the defense of personal injury cases arising from exposure to toxic substances, including asbestos.
The firm continued its successes in the 1980’s and 1990’s by steadily increasing its reputation as a leading litigation law firm as well as increasing the firm’s number of attorneys and practice areas. The firm moved its practice to 330 East Coffee Street in Greenville in 1983 and grew to 17 attorneys by 1988. Just a few years later, the firm outgrew its Coffee Street location with its growth to 27 attorneys in 1998. In the early 1990’s, the firm served as lead South Carolina counsel for a chemical manufacturer in the first case multidistricted in South Carolina by the Judicial Panel on Multidistrict Litigation.
At the turn of the century, the firm officially became known as Gallivan, White, & Boyd, P.A., and in 2003, it moved to its current location at Liberty Plaza overlooking downtown Greenville. In 2005, members of GWB’s Commercial Transportation Group served as lead counsel in the emergency response, post-accident investigation, and claims handling for a major railroad company after a train derailment and toxic chlorine release resulted in more than 9 deaths and over 1,000 claims in South Carolina.
Then, GWB represented a Fortune 500 client in class actions brought against it by physicians. GWB was also retained in 2008 to represent this client again in a purported class action of its more than 13,000 policyholders seeking distribution of dividends.
GWB experienced continued growth during this decade, opening its first offices outside of Greenville. While continuing its emphasis on litigation, the firm has also expanded its corporate and commercial transaction practice. GWB grew from 27 attorneys in 1998 to 47 attorneys in 2010, to 61 attorneys in 2015. The firm is one of the Southeast’s leading business and commercial law firms with five offices in the Carolinas located in Greenville, Columbia, Anderson, and Charleston, South Carolina and Charlotte, North Carolina.
The firm operates within four major groups—litigation, business and commercial law, insurance practice and workplace practices. Each group is further organized into practice area teams of lawyers who stay informed of the latest developments that impact their specific clients and the particular industries served.
GWB’s success and longevity are intertwined with its reputation for providing wise legal counsel and first-class client service. The values that have come to define Gallivan, White, & Boyd, P.A. to its clients and the community are the compass that guide the firm into the future.
A South Carolina federal trial court recently granted summary judgment in a mesothelioma case, after applying the Lohrmann standard, in spite of the Plaintiff’s argument that a lower standard of proof should apply in such cases. See Sparkman v. A.W. Chesterton Co., No. 2:12-CV-02957-DCN, 2014 WL 7369489, at *1 (D.S.C. Dec. 29, 2014). In Sparkman, the decedent’s personal representative alleged that exposure to asbestos from Foster Wheeler boilers caused the decedent’s mesothelioma.
Judge Norton’s thorough, well-written opinion began by concluding that South Carolina law applied to the diversity action and that South Carolina had unequivocally adopted the Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1163 (4th Cir. 1986) “frequency, regularity and proximity test” for causation in asbestos cases. The Plaintiff in Sparkman attempted to distinguish Lohrmann, arguing that the standard only applied to asbestosis cases. The Plaintiff urged the Court to follow the Seventh Circuit’s lead and apply a lower “minor exposure” standard in mesothelioma cases. Judge Norton rejected this argument, finding that the South Carolina Supreme Court opinion which actually adopted the Lohrmann standard, Henderson v. Allied Signal, Inc., 373 S.C. 179, 644 S.E.2d 724 (2007), broadly dealt with “mesothelioma and other asbestos-related illnesses.” In other words, the law of South Carolina requires a plaintiff to satisfy the frequency, regularity, and proximity factors in order to establish causation in an asbestos case, regardless of the disease at issue.
The Court then considered whether the evidence satisfied the Lohrmann factors such that there was a genuine issue of material fact as to the allegations that a Foster Wheeler boiler caused the Plaintiff’s mesothelioma. The Court found that there were fatal holes in the proof. For example, while the Plaintiff was perhaps able to show that a Foster Wheeler boiler was in the vicinity of the Plaintiff at relevant times, the Plaintiff was unable to show that the Foster Wheeler boiler was responsible for exposing the Plaintiff to friable asbestos.
In the end, the Court concluded that the Plaintiff “fail[ed] to raise a genuine dispute as to whether [the decedent] was exposed to asbestos from a specific product manufactured by Foster Wheeler, much less on a frequent and regular basis.” Judge Norton’s opinion has several transcendent meanings. First, it means that Plaintiffs must prove that a Defendant was responsible for causing the Plaintiff’s injury, even in an asbestos case. Second, it means co-worker testimony that he or she may remember a defendant’s product being near the Plaintiff isn’t enough to survive summary judgment. And indirectly, this opinion undermines the popular Plaintiff’s “any exposure” causation theory.
Our fearless leader here at Gallivan, White, & Boyd, P.A. – Mills Gallivan himself – had an editorial published in The Post & Courier, Charleston’s newspaper, yesterday. The topic: Judiciary funding. Here are the first two paragraphs of the piece:
I have a lawyer friend who loves to avoid ownership by quipping, “Not my problem.” Sometimes he is right, but more often he is just hopeful that the problem will resolve itself without him having to get involved.
The issue of funding for the judiciary is one of those thorny problems that we all wish would go away. It is a problem which we lawyers see first-hand and understand, or of which we are at least cognizant.
“The Economics of Justice” is a new study by DRI, a professional association of 22,000 attorneys of the defense bar. It drives home the point that in most states the lack of funding for the judicial branch of government has reached a crisis stage. The study should be mandatory reading for everyone in America.
To read the rest of the editorial, please click here.
(By the way, Mills has contributed a number of pieces to Abnormal Use over the years, and you can find them here.).
South Carolina lawyers will recall that last year the South Carolina Supreme Court ordered them to update and verify contact information in the Attorney Information System (“AIS”). In fact, we here at Abnormal Use blogged about that very issue back in November of 2013. Well, South Carolina attorneys are now being required to verify and update their information again in the AIS system before January 1, 2015. According to an email sent this week:
Under Rule 410(g) and (l)(1) of the South Carolina Appellate Court Rules (available at www.sccourts.org/courtreg ), members of the South Carolina Bar and Foreign Legal Consultants must verify and update all of their information in the Attorney Information System (AIS) prior to paying their license fees. For the license fees that are due January 1, 2015, this update and verification must occur between October 20, 2014, and January 1, 2015.
The AIS may be accessed at www.sccourts.org/ais. Your user name is your bar number (minus any leading zeros) and the password is the password that you selected earlier. Once logged on to AIS, if your password is expired, you will immediately be prompted to update your password and security questions. You will be provided with detailed information on the complexity required for the password.
Please remember to review and update your contact and other information in AIS. You are reminded that the contact information in AIS, including the required e-mail address, is your official contact information. Rule 410(e), SCACR (“The mailing and e-mail address shown in the AIS shall be used for the purpose of notifying and serving the member.”).
To complete the verification process, please return to the “Attorney Contact Tab” and click the “Save and Verify” button at the bottom of the page. This completes the verification process.
Our advice: Hurry up and complete this task before the holidays arrive, lest it get lost in the shuffle.
The South Carolina Court of Appeals recently upheld a Spartanburg county jury’s award of actual and punitive damages against Wal-Mart in an interesting case involving negligence at the checkout counter. Solanki v. Wal-Mart Store #2806, No. 2012-213247 (S.C. Ct. App. Aug. 20, 2014). In his dissent, Justice H. Bruce Williams references the trial court judge’s remark as to the “weirdness of the transaction” underlying the claim, and the transaction was weird, indeed.
The Plaintiff, Mr. Solanki, trekked to the Wal-Mart in Boiling Springs for a shopping trip. When he attempted to checkout, the clerk tried three times unsuccessfully to charge the amount owed to Mr. Solanki’s credit card. The clerk then manually stenciled the credit card and entered the credit card number into the computer. Unfortunately, the number was entered into the computer incorrectly, and the number actually entered belonged to Ms. Martin. She noticed the apparently fraudulent transaction and reported it to the police department. Wal-Mart provided the police department with the manually sketched credit card bearing Mr. Solanki’s signature, the surveillance tape, and various other information pertaining to the transaction. Mr. Solanki was subsequently arrested in Georgia and spent almost a week in jail in Georgia before being extradited to South Carolina. Everything was eventually sorted out, and the indictment was dropped. However, Mr. Solanki filed suit against Wal-Mart as well as the police department shortly thereafter. Following a jury trial, the Spartanburg jury awarded $50,000 in actual damages and $225,000 in punitive damages.
Judgment was entered on the verdict, and post-trial motions were denied.
On appeal, Wal-mart argued that the evidence presented did not support an award of punitive damages, which in South Carolina requires the plaintiff to prove “by clear and convincing evidence the defendant’s misconduct was willful, wanton, or in reckless disregard of the plaintiff’s rights.” The Court of Appeals held that Mr. Solanki “presented sufficient evidence of Wal-Mart’s willful, wanton, or reckless misconduct to send punitive damages to the jury in two factual circumstances— the taking of the credit card information for the sale and the turning over of the credit card information to law enforcement.” Regarding the taking of the credit card information for the sale, the Court took into consideration that “[a]t the end of the transaction, the receipt presented had Mr. Solanki’s signature but showed Martin’s credit card information.” Regarding the credit card fraud investigation, the Court noted the trial court’s conclusion that “Wal-Mart was responsible for the creation and production of the evidence used to arrest Mr. Solanki and it was in the best possible position to point out the discrepancies to the police officers.”
This opinion is based on a unique set of facts, so its application to other contexts may be limited. However, it would appear at first glance that this holding imposes a heightened duty on retailers in the context of a criminal investigation, and eases the burden of proof for plaintiffs in punitive damages cases, either of which could create problems for defendants in the future.
Whether in the form of anonymous comments to an article written by someone else, reviews of businesses, or drafting blog posts, tweets, musing on Tumblr, Facebook posts, it often only requires a few keystrokes and hitting “enter.” With all of this, we have become so desensitized to opinion in our daily lives that we do not ask the proper questions to learn if someone is reporting facts or opinion. However, the South Carolina Court of Appeals recently reminded us that, during trial, we must be discriminating in an evaluating what constitutes fact and what constitutes an opinion. Fowler v. Nationwide Mut. Fire Ins. Co., No. 2012-213250 (S.C. Ct. App. Aug. 6, 2014) is a breach of contract and bad faith case arising from the denial of insurance coverage on a policy held with Nationwide for a house fire that occurred in 2009 in Oconee County, South Carolina. The Friendship Fire Department, a volunteer fire department, led by its Chief David Wright, responded first to the fire at the Fowler home and found itself ultimately responsible for putting out the fire. Following the fire, as required by state regulations, Chief Wright filled out a report about the fire, called a “Truck Report,” listing and explaining certain information about the fire. On the Truck Report, Chief Wright noted as follows: (1) for “Area of Origin,” Wright wrote “Living Room”; (2) for “Cause of Ignition,” Wright wrote “Unintentional”; and (3) for “Equipment involved in Ignition,” Wright wrote “Heater.” Prior to trial, Nationwide moved to exclude the testimony of Wright regarding the cause and origin of the fire as well as the relevant portions of the Truck Report regarding same.
While Chief Wright was never admitted as an expert at trial—an issue which is the subject of a different appeal—he was permitted to testify about the Truck Report and his conclusions therein. He testified that he wrote “Living Room” because it was the room that was the most heavily damaged and that he wrote “Unintentional” because he did not see or smell anything that caused him to suspect the use of accelerants or arson. As to the “Unintentional” answer, Chief Wright testified that it was “just his opinion.” Finally, he testified that he believed the heater was involved because a kerosene heater was located at the base of a V-shaped burn pattern on the wall of the living room. When asked to explain the V-pattern, Chief Wright testified that when he has been around investigators or inspectors, they call it a “V-pattern” when the fire starts at a point and moves up the wall and spreads out like a “V.” Thus, Chief Wright testified that he believed the heater had instigated the fire because it was at the base of the V-shape.
The jury returned a Plaintiff’s verdict for over $500,000 on the breach of contract and bad faith claims. On Nationwide’s motion for new trial, the circuit court found that the statements made by Chief Wright were admissible perceptions under Rule 701 of the South Carolina Rules of Evidence. Rule 701, SCRE, states that “[i]f the witness is not testifying as an expert, the witness’ testimony in the form of opinions or inferences is limited to those opinions or inferences which (a) are rationally based on the perception of the witness, (b) are helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) do not require special knowledge, skill, experience or training.”
Despite arguments by the respondents that Chief Wright was merely explaining what he observed, the Court of Appeals held that some of Chief Wright’s testimony was improper opinion testimony because that testimony required “special knowledge, skill, experience or training.” Additionally, the Court of Appeals held that the Truck Report should not have been admitted as a public records hearsay exception under Rule 803(8), SCRE, which includes “reports, . . . of public offices or agencies, setting forth . . . matters observed pursuant to duty imposed by law as to which matters there was a duty to report, . . . ; provided, however, that investigative notes involving opinions, judgments, or conclusions are not admissible.” The Court of Appeals also found that the improper admission of Chief Wright’s testimony and the Truck Report was prejudicial to Nationwide at trial such that a new trial was warranted.
Unlike the unregulated land of Internet reviews, tweets, blog posts, and other social media statements, Fowler makes clearer the delineation of opinion testimony for those who are not admitted as experts. Going forward, an opinion is something that goes to causation or the underlying issues because it requires “special knowledge, skill, and experience.”