Court: Supreme Court of South Carolina

In this mesothelioma matter, the Supreme Court of South Carolina granted a writ of certiorari to review decisions of the South Carolina Court of Appeals affirming (1) the trial court’s denial of Scapa Waycross Inc.’s motion for judgment notwithstanding the verdict based on the insufficiency of the evidence as to causation, (2) the trial court’s order granting a new trial nisi additur, and (3) the trial court’s denial of Scapa’s motion to reallocate pretrial settlement proceeds.

The court determined that certiorari was improperly granted with respect to the latter two issues.

As to the first issue regarding causation, the court reviewed the substantial factor causation test set forth in Henderson v. Allied Signal Inc., 373 S.C. 179, 644 S.E.2d 724 (2007). In Henderson, the court adopted the “frequency, regularity, and proximity test” laid out in Lohrmann v. Pittsburgh Corning Corp.,782 F.2d 1156, 1162-63 (4th Cir. 1986).

In a products liability case, a plaintiff must prove that “defendant’s defective product was a proximate cause of the plaintiff’s injury.” To do so, a plaintiff must establish causation in fact – that the injury “would not have occurred but for” the wrongful conduct, and legal causation – that the injury was “a foreseeable consequence” of the conduct. Legal causation is established by demonstrating through direct or circumstantial evidence that “the injury in question occurred as a natural and probable consequence of the defendant’s act.”

To satisfy the Lohrmann test, the plaintiff in this case was required to prove that the decedent was exposed to Scapa’s asbestos-containing dryer felts “on a regular basis over an extended time in proximity to where he worked.” In their motion for judgment notwithstanding the verdict, Scapa argued that the evidence failed to fulfill this test. Specifically, Scapa pointed out the Court of Appeals’ citation to Rost v. Ford Motor Company, 151 A.3d 1032 (Pa. 2016) and claimed that the court endorsed the cumulative dose theory.

The South Carolina Supreme Court determined that the Court of Appeals “did not deviate from” the Lohrmann test. In addition, the Court of Appeals accurately stated that Dr. Frank did not base his opinion that Scapa’s dryer felts were a substantial factor in causing the decedent’s mesothelioma on the cumulative dose theory. The South Carolina Supreme Court did not address whether the Supreme Court of Pennsylvania “did not or did not base its decision in Rost on the substantial factor test.”

Accordingly, the Supreme Court of South Carolina affirmed the Court of Appeals.

Read the full decision here.