South Carolina has become a national “hotspot” for asbestos lawsuits. In the last three years, there has been a 138% increase in the number of asbestos cases filed here, almost three-quarters of them by a Texas law firm that now dominates the state’s litigation.
The number of asbestos cases filed nationally is down 9%, so why are they skyrocketing in South Carolina?
The dramatic increase in asbestos filings began after the South Carolina Supreme Court appointed retired Chief Justice Jean Hoeffer Toal to serve as judge for all of the state’s asbestos cases in 2017.
The growing docket also coincides with an influx of cases from the Dallas law firm Dean Omar Branham Shirley LLP. From 2017 to 2020, the firm’s South Carolina filings increased 400% even though none of the firm’s name partners are licensed to practice law in South Carolina and many of their clients or plaintiffs aren’t residents of the state either.
Recently the Texas firm’s lead partner withdrew from three South Carolina cases after it was learned that her applications for an out-of-state lawyer to try cases here were signed and filed by a firm paralegal without her knowledge and omitted the fact that she had been barred from trying a case in Connecticut. A judge in Iowa recently barred the partner from trying a case in that state and a judge last year in Minnesota sanctioned the partner $78,000 for not following a court order.
Dean Omar likes South Carolina because, according to a recent report by the American Tort Reform Foundation, Judge Toal almost always sides with the Texas firm and its local counsel Kassel McVey with pro-plaintiff rulings and what the report says is unjust treatment of defendants. The Foundation recently ranked South Carolina’s asbestos litigation as the fourth-most unjust forum in the country.
According to the report, in response to motions filed by Dean Omar, Judge Toal frequently imposes severe and unwarranted penalties on defendant companies. In five recent cases, Dean Omar filed 22 motions for sanctions against defendants, including eight in just one case. Sanctions in asbestos cases are rare, except in South Carolina after Judge Toal took over the docket.
Judge Toal’s other outlier rulings include overturning a jury’s verdict in favor of a defendant and on at least two occasions changing jury awards, increasing one award by $1.6 million.
After defendants won one trial, Judge Toal ordered the defense lawyers to pay Dean Omar more than $300,000 for their fees and expenses, including the cost of Uber rides and taxis in Texas, even though Dean Omar lost the case. That ruling is now before the South Carolina Court of Appeals.
In May 2020, Zurich American Insurance asked the state Supreme Court to recuse Judge Toal from its asbestos cases, writing that her “factually unsubstantiated and procedurally irregular findings call into question Chief Justice Toal’s impartiality and create an unacceptable risk of actual bias.”
Dean Omar is now proposing that Judge Toal change the Case Management Order and discovery rules for asbestos cases to further favor plaintiffs represented by the law firm. The proposed changes are unfair and are strongly opposed by the state’s defense bar and defendant companies.
In late January, an attorney representing the Defense Steering Committee wrote Judge Toal that the amendments are also unconstitutional, change court rules promulgated by the South Carolina Supreme Court and eliminate requirements in an asbestos litigation statute enacted by the Legislature in 2006.
In other words, the Court is not only making unfair and unjust rulings, Dean Omar is now asking the Court to usurp the authority of the Supreme Court and the Legislature.
South Carolina is an asbestos litigation hotspot for what it is doing wrong, not for what it is doing right.
It is time the South Carolina Supreme Court and the Legislature take a hard look at what is happening with the state’s asbestos litigation and why an out-of-state law firm is filing more and more cases here.