South Carolina’s Electronic Filing Pilot Program Expands To Greenville County

As our South Carolina attorney readers know, the Supreme Court of South Carolina has been slowly unveiling a state court electronic filing pilot program in counties throughout the state. In a March 10 order, the Supreme Court expanded the program to Greenville County.

The order is effective as to Greenville County as of yesterday, March 22, 2016.

You can read the full order here.

South Carolina Issues Order on Interest Rate on Money Decrees and Judgments

As it does each year at about this time, the South Carolina Supreme Court has issued its order on interest rates and judgments. In case you missed it, the complete order is as follows:

S.C. Code Ann. § 34-31-20 (B) (Supp. 2015) provides that the legal rate of interest on money decrees and judgments “is equal to the prime rate as listed in the first edition of the Wall Street Journal published for each calendar year for which the damages are awarded, plus four percentage points, compounded annually. The South Carolina Supreme Court shall issue an order by January 15 of each year confirming the annual prime rate. This section applies to all judgments entered on or after July 1, 2005.  For judgments entered between July 1, 2005, and January 14, 2006, the legal rate of interest shall be the first prime rate as published in the first edition of the Wall Street Journal after January 1, 2005, plus four percentage points.”

The Wall Street Journal for January 2-3, 2016, the first edition after January 1, 2016, listed the prime rate as 3.50%.  Therefore, for the period January 15, 2016, through January 14, 2017, the legal rate of interest for judgments and money decrees is 7.50% compounded annually.

You can find the full order here.

South Carolina Federal District Court Issues Order Relating To FRCP Revisions

As we noted recently, it would be wise for practitioners to investigate their local federal district court’s local rules in light of the recent revisions to the Federal Rules of Civil Procedure. In the spirit of that advice, we direct your attention to a recent order by the U.S. District Court for the District of South Carolina, which you can find here.

For ease of reference, we’ve also included the screen capture below with the text of the order:

Screen Shot 2015-12-03 at 10.30.23 AM

Signed by Judge Wooten, the order notes that the local rules are amended and effective as of December 1, 2015 (the same date as the FRCP revisions).

South Carolina Supreme Court Establishes Civil Motions Pilot Program

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.

South Carolina Changes Witness Fee Subpoena Rules

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.

Here is a link to the Supreme Court’s May 1, 2015 order on this issue, while here is a link to the revised subpoena forms at issue.

Can Potential South Carolina Defendants Decide When And Where a Lawsuit will be Filed?

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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.”).

Once a potential defendant receives notice of a claim and a demand, it would appear that it is then aware of a dispute. We would submit that the potential defendant should be able to then file a DJ, asking the court to declare that the potential defendant has not violated the rights of the potential plaintiff. This would resolve the dispute, the uncertainty, and would accordingly further the purpose of the SCUDJA. Pretty crazy, right?

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.

South Carolina Federal Trial Court Grants Summary Judgment in Mesothelioma Case

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.

Here’s the first two paragraphs of the piece:

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.

Gallivan, White, & Boyd, P.A. – A History

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.

South Carolina Federal Trial Court Grants Summary Judgment In Mesothelioma Case

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.

Court Funding Shortfalls Are A Shameful Injustice

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.).