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 the homeowner 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.”

Weddings are a big deal. Couples  spend thousands of dollars to make sure every tiny detail is perfect. Unfortunately, however, there is no guarantee the ceremony will go off without a hitch. Even when spending a small fortune, a wedding can be ruined by a rain shower or an intoxicated participant. Sometimes, the “disaster” transitions into a humorous story after time removes the scarring. Other times, the disaster is so egregious that it might just lead to a lawsuit. It is a fine line, to be sure. Recently, a South Carolina couple has alleged that they found themselves on the wrong side of that line. But let’s allow you to judge.

According to a report out of the Daily Mail, a Charleston couple claims that their 2013 wedding was ruined after a man exposed his genitalia during their ceremony in the courtyard of the Doubletree Inn. Apparently, a naked hotel guest decided that he wanted to take part in the ceremony by standing in front of an open window overlooking the courtyard in all his glory. This curious event transpired after the couple was allegedly assured by hotel management that the ceremony would not be disrupted by hotel guests not in attendance. As a result, the couple and the bride’s parents have filed suit against City Market Hotels seeking actual and punitive damages for negligence and emotional distress. The streaker is not named as a defendant.

We understand the couple’s frustration. You only get one wedding day with your partner. Now, this couple’s special day will always be marred by the actions of a creeper. The question is, however, what, if anything, is this suit worth? Certainly, like any business transaction, if you don’t get what you pay for, you should be able to ask for a refund. Our guess is that if that was all the couple wanted, then there would have been no reason to file suit.

For some, an event such as this is so unconscionable that it will forever cause anguish. For others, it leads to a heck of a funny story from an otherwise bland wedding. We imagine the jury pool will be made up of those on both side of the divide. Whether or not the couple recovers, this event will make for a story they will one day tell their grandchildren. Of course, a good laugh will ensue.

Recently, we here at Abnormal Use lamented the tales of those who elect to air their defective food product grievances over 911 calls rather than more traditional methods. As much as we may detest the use of 911 in non-emergency, defective food situations, such things are  preferable to a recent incident at a South Carolina Burger King. According to a report from the Post and Courier, a Burger King customer threatened to shoot employees over a stale cinnamon roll. Guns and breakfast food. You can only imagine our disbelief upon hearing that this incident occurred in our home state. If your were thinking that there must be more to this story, you would be mistaken. Apparently, the woman complained that her BK-made cinnamon roll was served at less than its optimal freshness, only to be told that the roll was the only one left. She then left the store, only to return later with her hand stuffed in her purse, threatening to “shoot everyone.” Employees called 911 (appropriately), and she fled the scene.

Like this woman, we, too, are fans of cinnamon rolls. There is no better way to start your day than with cinnamon and cream cheese frosting. We understand the woman’s frustration upon discovering stale dough has ruined her breakfast. Violence, however, is not the answer. Apparently, this woman has never seen Falling Down, as this approach didn’t work out so well for Michael Douglas.

If you receive food that is not served to your exact specifications, complain if you must. Just leave guns – and 911 – out of it.

As it was then, and so it is now, we here at Abnormal Use care deeply about college football.  Avid readers may recall or our 2011 post discussing a parking fee dispute that arose between the University of South Carolina and a fan that purchased a lifetime membership into the Gamecock Club. While a clever revenue raiser, lifetime memberships are a challenge because they, well, last a lifetime.  So it is no surprise that a dispute over the Gamecock Club’s lifetime membership once again makes its way through the South Carolina judicial system. That case is Lee v. University of South Carolina, et. al., No. 2012-212567 (S.C. April 2, 2014), released yesterday by the South Carolina Supreme Court.

The facts were these: In 1990, George Lee III purchased a $100,000 life insurance policy, naming the University of South Carolina the sole beneficiary, in exchange for an opportunity to purchase basketball and football tickets for the duration of Mr. Lee’s life.  In an effort to generate more revenue, the University instituted the Yearly Equitable Seating (YES) program and began requiring all Gamecock Club members to pay a seat license fee prior to purchasing season tickets. Mr. Lee did not care for the seat licensing fee and filed a declaratory judgment action. The trial court entered judgment for the University of South Carolina and the Gamecock Club, but yesterday, the South Carolina Supreme Court reversed the trial court, finding that the University breached its 1990 Agreement with Lee by requiring Lee to pay the YES fee in order to retain the opportunity to buy tickets.  The Court in reaching its conclusion found that:

 The language of the Agreement is clear.  As long as Lee performs his contractual obligations, the University must provide him with the “opportunity to purchase” season tickets to University athletic events as described in the Agreement. The Agreement contains no limitations or conditions on this contractual right. Thus, by requiring Lee to pay the seat license fee before purchasing season tickets, the University has attempted to impose an additional term that the parties did not agree upon. This unilateral attempt to modify the Agreement is impermissible.

Undoubtedly, as the University of South Carolina’s football program continues to improve, the school will look for ways reap the financial benefit.  While the Gamecocks continue to win on the field, it is may be time to abandon efforts to profit further from their lifetime members’ seats and parking spaces (as that approach appears to lead to litigation).  In order to pay for the ability to play Sandstorm more than the Vols play Rocky Top, South Carolina should increase the price of the official Head Ball Coach Visor.

Not too long ago, on January 2, 2014, the South Carolina Court of Appeals released its opinion in Holland v. Morbark, Inc., et al, No. 2011-199928 (S.C. Ct. App. January 2, 2014).  Centering around design defect and failure to warn claims in the summary judgment context, it is a products case with which any products liability lawyer should be familiar. However, because our firm was involved in the litigation of that matter, we will simply direct your attention to the opinion and leave the commentary to other bloggers.

Carnival Cruise Lines recently scored a big legal victory in the South Carolina Supreme Court against several Charleston preservation and environmental groups.   The Plaintiffs claim that a 2,000 passenger Carnival cruise ship that uses Charleston as its home port is a nuisance.  The Court found that the Plaintiffs lacked standing because they were alleging a general public nuisance.

The Plaintiffs in this case alleged that the mammoth cruise ship  caused traffic congestion while loading and unloading its 2,000 passengers in downtown Charleston.  They also claimed that it created air pollution and blocked views.  Anyone who has been to downtown Charleston on a day when the cruise ship was loading up can certainly confirm its effect on traffic.  The several story high ship also blocks some views of the river.  However, the court never reached the underlying nuisance claim. Instead, the Court disposed of the case by holding that the Plaintiffs lacked standing because they were alleging a general public nuisance.  In South Carolina, as in most states, no civil remedy exists for a private citizen harmed by a public nuisance, even if his or her harm was greater than the harm suffered by others.  Rather, a plaintiff must allege a particularized harm to his or her legally protected interest.

As reported by Reuters, one of the lawyers for the Plaintiffs, Blan Holman, has said that some individual property owners are considering refiling the lawsuit as individuals.  Presumably, those property owners will attempt to allege a private nuisance for show that the cruise ship specifically interferes with the enjoyment and use of their property.

The case is Carnival Corp., et. al. v. Historic Ansborough Neighborhood Ass’n, No. 2011-197486 (S.C. Nov. 19, 2013).